pageok
pageok
pageok
The Obama prosecutions of 2013/17:

Hypothesize that the Obama administration, or perhaps foreign/international courts, prosecute and convict various officials of the Bush administration. Further assume that the new President who takes office in 2013 or 2017 has promised "I will ensure that the crimes of the previous administration are vigorously prosecuted."

Which, if any, acts of the First 100 Days of the Obama administration might be prosecuted? In answering the question, you may aggressively interpret any statute, treaty, jurisdictional claim, etc., in favor of the prosecution, but the interpretation may not involve a greater stretch than would be required to hypothesize the convictions of Bush, Cheney, Rumsfeld, their attorneys, CIA officers, and so on.

PLR:
We don't prosecute "acts," we prosecute people.

If we're talking crimes under U.S. federal statutes (other than the anti-terror statute), none.

If we're talking about international law crimes or the federal anti-torture statute, insufficient information at this point.

I'll keep the question in mind though.
4.24.2009 5:36pm
Wayne Jarvis:
Obama ordered the brutal shooting of three misguided teen-aged runaways.
4.24.2009 5:40pm
einhverfr (mail) (www):
Wiretap act violations?

You don't believe those have stopped, do you?
4.24.2009 5:43pm
theobromophile (www):
If I may expansively interpret your question to include the election, there could possibly be an investigation into and prosecutions for various campaign finance fraud issues (foreign donations, bad record keeping which allowed people to donate in excess of the $4,600 limit, etc).

Beyond that, I agree with Prof. Kopel's larger point (or what it probably is): this behaviour will result in nothing more than the desire for retribution. Rather than creating a bipartisan group in Washington, as Obama promised, he is creating yet another avenue by which the majority party (or the party in control of a certain branch) will harass the other party.
4.24.2009 5:43pm
Just an Observer:
To be fair, offhand I can't think of anything in the first 100 days of the Bush-Cheney administration that was actionable in that respect. It took them several months to hit their stride, mostly after 9/11.
4.24.2009 5:45pm
Anderson (mail):
If Obama &his people do anything prosecutable, hell yes, prosecute them.

Rule of law, people.

Of course, if it's not quite as cut-and-dried as torture, then you may have a harder time getting to the jury. But if a grand jury will indict, run with it.

Meanwhile, via Scott Horton, we see that in MAY 2002, CIA went to NSA with its wish list, including waterboarding. There is no longer much room to doubt that the August 2002 memos were created as legal cover for methods that were going to be implemented. IOW, conspiracy to violate the Torture Act.

(Questions abound ... here's one: did CIA's Rizzo go to CIA's inspector general first? If so, what was he told? If not, why not? Because the IG couldn't give "golden shields" like OLC could? What does that tell you right there about CIA's impression of the likely legality of their proposed methods?)
4.24.2009 5:49pm
cvd (mail):
I think the financial interventions are the obvious actions for which someone would be prosecuted.

For example, didn't the current administration fire GM's CEO? I'm not sure that's legal.
4.24.2009 5:50pm
Rock On:
I know, why don't we speculate wildly about things we know nothing about? That seems productive!
4.24.2009 5:51pm
zuch (mail) (www):
I fully agree with Anderson:

If you can find Obama or his administration breaking the law, prosecute them. Why anyone should suggest otherwise is beyond me.

Cheers,
4.24.2009 5:51pm
c.gray (mail):
Any effort currently being put forth by the White House or Treasury to obscure the true state of financial health of any of the top 18 banks is arguably a conspiracy to violate Sabines-Oxley, and will be prosecutable under RICO.
4.24.2009 5:53pm
zuch (mail) (www):
Wayne Jarvis:
Obama ordered the brutal shooting of three misguided teen-aged runaways.
Feel free to file a complaint. When people get done laughing at you, maybe they'll explain what happens to people holding hostages at gunpoint ... even in the United States.

I'm quite sure you thought this was clever ... but you'll need to dig a bit deeper to impress anyone around here.

Cheers,
4.24.2009 5:54pm
d g (mail):
Conspiracy to commit securities fraud on the shareholders of Freddie Mac and Bank of America. Frankly I would be surprised a class action suit wasn't already in the works.
4.24.2009 5:58pm
one of many:
how about the intentional denial of habeas to Bagram inmates without even the cover the Bush DOJ had of it being unlitigated territory?
4.24.2009 6:00pm
zuch (mail) (www):
theobromophile:
I agree with Prof. Kopel's larger point (or what it probably is): this behaviour will result in nothing more than the desire for retribution.
Oh, I have no doubt. See, e.g., Lewinskygate and the "Starr" Chamber. On that matter, we have this:

"In the latest travesty, as revealed by the Washington Post,
Starr used prosecutors and FBI agents to interrogate Arkansas
state troopers about women with whom Bill Clinton allegedly had
affairs prior to his presidency. Starr's deputy argues that
they had a duty to find out whether Clinton might have confided
some incriminating statements to these women. Fine--until you
consider the questions Starr's agents actually asked. They
wanted to know whether one woman had borne a child who
resembled Clinton and whether any of the officers had witnessed
Clinton having sex with local women."

(U.S. News and World Report, July 21, 1997)

Note that this happened even before Lewinsky fell into Starr's lap (or was pushed), and Starr have even a fig leaf of 'plausible' jurisdiction to go panty-sniffing.

It really doesn't matter what Obama does or doesn't do. The Republicans will come after any Democrats the same way they've always done.

That said, Obama should do what the law requires, not what is politically expedient (either way).

Why the RW thinks that political considerations should intrude on criminal prosecutions is beyond me.

Cheers,
4.24.2009 6:01pm
PLR:
Wiretap act violations?

You don't believe those have stopped, do you?


Good point. But Congress would probably immunize all participants if we started looking into it.
4.24.2009 6:10pm
Clayton E. Cramer (mail) (www):


Obama ordered the brutal shooting of three misguided teen-aged runaways.



Feel free to file a complaint. When people get done laughing at you, maybe they'll explain what happens to people holding hostages at gunpoint ... even in the United States.
In 2002, if you had suggested that waterboarding people that had planned 9/11 would lead to prosecutions, people would have laughed at you.
4.24.2009 6:13pm
Connecticut Lawyer (mail):
I would prosecute Obama and his minions for the targeted execution of suspected terrorists in Pakistan, along with the murder of their family members and friends.
4.24.2009 6:19pm
Seamus (mail):
If you can find Obama or his administration breaking the law, prosecute them. Why anyone should suggest otherwise is beyond me.

Oh, I don't know. Because no one showed any interest in prosecuting Bill Clinton for the kind of perjury that got lesser mortals sent to jail?
4.24.2009 6:23pm
JonC:
CT lawyer beat me to the punch...to the extent one believes that the Bush administration's authorization of Predator strikes in Pakistan was illegal, it's difficult to see how the Obama administration's continuing of that program could be distinguished.
4.24.2009 6:25pm
Apodaca:
Dave, I'm sure it would be asking too much for you to be outraged that the previous administration put into place, and then intentionally set into motion, a systematic program for conducting torture.

I'm equally sure that you think it's a better use of your time to pose questions like the one above.

Still, is there any possibility you could spare a little indignation over the protean and conflicting excuses, evasions, and justifications for torture put forward in recent weeks and months, which have run the gamut from "we don't torture" through "only a few rogue 'bad apples' did it" to "well, it worked," each one of which has been convincingly shown to be a lie?
4.24.2009 6:29pm
Just an Observer:
Wiretap act violations? ...

But Congress would probably immunize all participants if we started looking into it.


Actually, I don't believe Congress has immunized anyone for any criminal FISA violations occurring during the Bush administration. The 2008 FISA amendments did bar civil actions against cooperating telecoms.

All that protects against FISA prosecutions are Yoo's get-out-of-jail-free OLC opinions that are still secret. When are we going to see those?
4.24.2009 6:30pm
Troll (mail):
I don't understand why we have laws specifically designed for deterring bad conduct by people in power if we don't intend to enforce them. Should leaders just be above the law? I don't get it. All the strawmen about banana republics and kangaroo courts is bullshit. If a leader seriously violates the law, prosecute them.
4.24.2009 6:30pm
JDS:
Not just securities fraud on Bank of America shareholders, but extortion... On GM bondholders, too. And if the "cramdown" measures go through, any borrower who faces higher fees and more restrictive terms in the future will be able to argue a cause of action.
4.24.2009 6:31pm
Mahan Atma (mail):
"Because no one showed any interest in prosecuting Bill Clinton for the kind of perjury that got lesser mortals sent to jail?"


Well there was that whole impeachment thing, if I recall correctly.
4.24.2009 6:34pm
Andrew J. Lazarus (mail):
Prof. Kopel, here's my hypothetical. Deliberate Godwin's Law violation. Suppose the July 1944 assassination of Hitler had succeeded, and a new government of German Army Officers entered into a negotiated peace with the Allies. When it was time to deal with the Camps, would you be happy with the Germans saying, "We don't want to be a banana republik; we just plan to look ahead."

If you don't want previous administrations to go to jail, then don't let them get away with torture, a staple of banana republics.

Mr. Cramer: if it was so clear that the US would have approved torture after 9/11, why didn't the Administration simply ask for the repeal of the Torture Act and withdraw from the relevant treaties?
4.24.2009 6:37pm
Mew (mail):
The first 100 days is too soon (and artificial) - so let's extend the discussion to the first 2 years and imagine a possible long term trend. Consider: Obama is withdrawing forces too quickly from Iraq and sending them (perhaps 70,000+) to AFPAK. There is a strong chance that the quick withdrawal from Iraq will destabilize it and squander all of the hard-won gains of last year. Victory, of any sort, in AFPAK is impossible and everyone knows it; however, the large scale deployment of US forces there stands an excellent chance to cause or hasten the collapse of Pakistan which means takeover by a radical Islamist government - a tremendously dangerous development. Invasion of Pakistan is beyond our capabilities.

In other words, two major defeats for the US with grave security and economic implications. And Obama's policy choices are arguably directly responsible.

It can be claimed that the mistakes he's making are so obvious a freshman ROTC cadet could detail them: failure to consolidate an objective, division of forces, reenforcement of defeat.

If this scenario plays out, there's no question it is morally gross negligence.
But since this is a legal blog, I ask the following: if this happens, can the Obama administration be charged criminally after the fact? Is there a precise legal definition of Treason? If so, what is it? Could negligence in the command of military forces by the President be considered criminal under the law?
4.24.2009 6:39pm
paul lukasiak (mail):
In 2002, if you had suggested that waterboarding people that had planned 9/11 would lead to prosecutions, people would have laughed at you.
_
that's why we're a nation of laws, and not men.

moreover, the reason why "people would have laughed at you" was because they wanted to see those responsible for 9-11 punished -- the torture of KSM wasn't for "punishment" but an 'interrogation' technique. (not even Yoo and Bybee suggested that the torture inflicted on detainees was acceptable as 'punishment' for their crimes -- indeed, insofar as the torture was meted out prior to any adjudication of guilt, 'punishment' wasn't an issue.)
4.24.2009 6:40pm
ruuffles (mail) (www):

And Obama's policy choices are arguably directly responsible.

Really? I had no idea it was his third term already! Seems like 2003 was just yesterday.
4.24.2009 6:42pm
paul lukasiak (mail):
Could negligence in the command of military forces by the President be considered criminal under the law?

if so, then that's another count in the indictment against Bush, Cheney, Rumsfeld, etc...
4.24.2009 6:43pm
Clayton E. Cramer (mail) (www):

Mr. Cramer: if it was so clear that the US would have approved torture after 9/11, why didn't the Administration simply ask for the repeal of the Torture Act and withdraw from the relevant treaties?
1. They persuaded themselves that waterboarding wasn't torture. I am disinclined to agree, but I believe that honest people can disagree about thta.

2. As I understand, a total of three high value al-Qaeda officials were subjected to waterboarding. I suspect that the belief was, "We have no intention of doing this on a regular basis--this is a 'Jack Bauer' sort of moment."

3. It would have taken far longer to repeal the laws and withdraw from the treaties than there was time available. Remember: they believed that an attack was imminent.

4. Quite of a number of Democrats in Congress in 2002 knew that waterboarding was on the menu, and had no objections, because of the very real fear that almost everyone had at the time. The Bush Administration should have made Pelosi do the first waterboarding on Zubaydah, and filmed it, so that her stinking hypocrisy would have been more visible.
4.24.2009 6:45pm
Mew (mail):
Paul:

It may well be another count against Bush et. al., and if there is a legal way to charge it, then the current DOJ is of course entitled to prosecute.
4.24.2009 6:46pm
Cody:
Scenario: The economy continues to tank rapidly. The "tea party" movement strengthens and turns into a genuine third party movement that hates both of the existing major parties. In 2012 the presidential vote is split 36%/34%/30%, with the tea party inspired Justice Party coming first. Despite winning a plurality of the votes, the Justice Party does not get a majority, and they lose the resulting vote in the House. Convinced that the election was stolen, the new Justice Party descends further into radical populism.

Mostly in self-defence the other two major parties drift further towards statism and form a "national unity" government, doubling down on the economic policies of the first Obama administration. The economy continues to falter, and by 2016 the Justice Party sweeps into power and immediately begins holding trials to prosecute the previous to administrations for "economic treason".

Paulson, Bernanke, and Geither are among the first to be executed for their role in the TARP programs I through VI, PPIP I through III, the full nationalization of the banking and health care sectors of 2011 and 2013, and other related "crimes against the citizenry". No prosecutions for illegal wiretapping or torture are forthcoming, if for no other reason than the Justice Party sees nothing wrong with them, and use both tools extensively in order to bring "collaborators" to justice in front of the new Citizen's Courts.
4.24.2009 6:53pm
MartyA:
Easy answer! I can read all over the place secret memos, secrets of the nation, that inform our enemies how we develop information from captured muslim combatants. But, I can't read Obama's birth certificate, medical records, undergraduate transcript or undergraduate thesis. Thus, while documents that jeopardize the lives of 325 million Americans are easily available the documents that protect the secrets of the key public individual are not.
Somewhere, probably, Chicago, before Obama was elected to the Senate, Obama's pimps met and developed the strategy that hid his flaws and disqualifying secrets and advanced him as a legal candidate, first for Senate (in Illinois!) and then for President. In 2013 or 2017 (if any of us are still alive or not living in camps), all those who attended that Chicago meeting and falsified the record should be tried and then hanged from the Chicago Picasso.
That takes us up to day one. Over the next 100 days, look for crimes not incompetence and I think that lets Obama off the hook in most areas but security. There will be the attacks that he has encouraged but those may be style or policy differences. The crimes involve all his appointments who are stealing us blind. I'd want to see an accounting of ALL of stimulus money and especially the dollars that found their way back to the friends and relatives of Presidential appointees and members of Congress. How much do you think Biden's son has increased his income over the past 100 days; Daschle's wife; Feinstein's husband and so on. Differences in style and opinion are not actionable; theft, dishonesty and looting are.
4.24.2009 6:54pm
Clayton E. Cramer (mail) (www):

Prof. Kopel, here's my hypothetical. Deliberate Godwin's Law violation. Suppose the July 1944 assassination of Hitler had succeeded, and a new government of German Army Officers entered into a negotiated peace with the Allies. When it was time to deal with the Camps, would you be happy with the Germans saying, "We don't want to be a banana republik; we just plan to look ahead."

If you don't want previous administrations to go to jail, then don't let them get away with torture, a staple of banana republics.
Your analogy falls down on several counts, of which the most obvious is that the Bush Administration would have been held accountable by the same crowd if they had failed to prevent another horrendous attack.

If you think that the Holocaust and even waterboarding (which I would agree is torture) are comparable, then you better go re-read those memos, and read some history of the Holocaust.
4.24.2009 6:56pm
Mac (mail):
Releasing (selectively) top secret CIA memos and aiding our enemies in so doing while simultaneously demoralizing the CIA both of which will quite likely leading to another attack.
4.24.2009 7:01pm
A.S.:
Torture.

Obama and his minions should be prosecuted for torture. After all, you don't think the torture stopped once Obama was elected, do you?

In fact, we have evidence that the torture has intensified since Obama was elected.

I, for one, look forward to Obama, Holder, Gates, et al being prosecuted for torture. We in this country should never, ever condone torture, and clearly the Obama Administration does.
4.24.2009 7:04pm
A.S.:
Also, Obama's actions against the pirates, leading to three pirate deaths, were not approved by Congress. Obama acted unconstitutionally in approving military action with consent from Congress.
4.24.2009 7:07pm
Sarcastro (www):
Obama has totally broken the law against running a war the way Mew wants! Or he well.

Other statutes violated: demoralizing the CIA, extortion via the Constitution's spending clause and pimping in Chicago!
4.24.2009 7:08pm
Sarcastro (www):
[Good lord, A.S. listen to yourself! Please tell me you are trying to do some sort of meta-ironic strawman?]
4.24.2009 7:12pm
A.S.:
To which post do you refer, Sarcastro?
4.24.2009 7:14pm
Thoughtful (mail):
"Under democracy each party always devotes its chief energies to trying to prove that the other party is unfit to rule—and both commonly succeed, and are right."--HL Mencken.

Prosecute them both. Prosecute them all. If this leaves few willing to work for the government, so much the better. The idea that the rule of law should be trumped by concerns that CIA recruiting might be more difficult if employees know they have to obey the law is pernicious.
4.24.2009 7:15pm
Laura(southernxyl) (mail) (www):
"If you don't want previous administrations to go to jail, then don't let them get away with torture, a staple of banana republics."

If the USA were a banana republic, it would be political dissenters like Michael Moore being tortured, not people planning widescale death and destruction of innocent Americans.
4.24.2009 7:17pm
Mew (mail):
Sarcasto:

I just don't want us to lose, and I wonder if losing badly can be considered criminal.

But hell, it's the era of Obama - Hope, Change, and all that stuff. I'm probably an outlier in wanting us to not lose.
4.24.2009 7:18pm
Mac (mail):
Wayne Jarvis:


Obama ordered the brutal shooting of three misguided teen-aged runaways.


Clayton Cramer wrote:
Feel free to file a complaint. When people get done laughing at you, maybe they'll explain what happens to people holding hostages at gunpoint ... even in the United States.


Mr. Cramer, Wayne Jarvis was obviously joking when he said that. Lighten up, man.
4.24.2009 7:25pm
Sarcastro (www):
Yep, I'm all about America losing! Like most liberals, I think America is to blame for every evil in the world, and that once we are taken down a peg all will be right with the world, Gaia will return and we will at last become the Buddhist utopia we were meant to be. Oh, I hope for the change.

[A.S. I was referring to the pirate action as act of war bit.]
4.24.2009 7:25pm
Benjamin Davis (mail):
Obstruction of justice and cover up crimes for failing to prosecute the high level civilians and military generals for torture during the Bush Administration. Might even have accessory after the fact type liability. This was easy.
Best,
Ben
4.24.2009 7:26pm
Mew (mail):
The sad fact is: leaving out the bit about Gaia and Buddhist utopia, I have been told exactly that we deserve to lose for your reason by many liberals over the bast 7 years.

I'm sure it has to do with the altered reality called University where I work, so it's not a valid sample of liberals opinion.
4.24.2009 7:31pm
Waldo (mail):
I don't suppose anyone could specify the statute, treaty, or jurisdictional claim that would support prosecution for actions in the first 100 days. There may very well be information that isn't public, but everything I've read about the Obama administration falls under "policy."

Also, "the interpretation may not involve a greater stretch than would be required to hypothesize the convictions of Bush, Cheney, Rumsfeld, their attorneys, CIA officers, and so on."
4.24.2009 7:32pm
Are You Serious?:

In 2013 or 2017 (if any of us are still alive or not living in camps)


I am quite willing to bet my life, my livelihood and everything I own that there is exactly zero chance of this happening. And I'm guessing you are as well.

Proof? I'm still in the US, and so are you. (Yeah, okay, maybe your master plan is to carry out patriotic armed resistance against the tyrant; in that case all I ask is that you wait until he, you know, actually oppresses the citizenry.)

It cannot be said enough: Obama is not going to round us all up and put us in camps. Of all the nutty things people keep saying, this should be the nuttiest. Unfortunately, "torture is not wrong as a matter of morals or policy" and "revealing that we have tortured people is evil" keep cropping up as well, so the concentration camp canard is at best #3 on the nuttiness list.
4.24.2009 7:32pm
Andrew J. Lazarus (mail):
For those of you who have forgotten how the GOP wanted to investigate the departed Clinton Administration over the Marc Rich pardon, you can click here. It's evident that this is just another IOKIYAR phenomenon.
4.24.2009 7:34pm
PC:
To which post do you refer, Sarcastro?

Yes.
4.24.2009 7:38pm
Mac (mail):
I would b interested in the legal authority Obama had to fire a CEO of a public company i.e. GM. I don't think it has ever happened before has it? I am not saying he can be prosecuted for it, but I am still mystified as to his legal authority to do what he did.
4.24.2009 7:40pm
PC:
Which, if any, acts of the First 100 Days of the Obama administration might be prosecuted?

Conspiring with space aliens to demoralize Dick Cheney. Let me just find the statute...
4.24.2009 7:41pm
Mew (mail):
Serious:

How on Earth do you know that Obama won't put people in camps? Both Wilson and FDR rounded up all sorts of people. And yes, they were put in camps.

If you don't believe this, take a drive down US 395 some time and look carefully in the Bishop - Lone Pine area.

Obama's statist governing ideas are solidly in the Wilson/FDR mold.

No one in 2000 thought the government was going to round up people and torture them, but it did - that's why were all here arguing.

How do you know what circumstances will develop?
4.24.2009 7:41pm
John Moore (www):

For those of you who have forgotten how the GOP wanted to investigate the departed Clinton Administration over the Marc Rich pardon, you can click here. It's evident that this is just another IOKIYAR phenomenon.


Fine. As long as the "prosecution of former Bush officials" remains just talk, then keep at it.

That Bush illegally tortured is no doubt very clear to many, and equally not true to many others. That polarization already exists. The information released to date will not change that much (the increased frequency of the waterboarding (even misreported to be worse than it was).

Prosecuting former members of the Bush Administration will simply greatly increase the already excessive polarization of our society, poisoning our political climate.

Republicans have realized that the impeachment of Bill Clinton was a mistake - not because he hadn't violated the law while POTUS - but because the harm outweighed the good.

It is time for the Bush haters to realize the same thing.

In the ivory tower of TVC, it is apparently too easy to forget the mood of the nation and the desires of the people (including the Democratic congressional leadership) for the administration to stop the next attack at all costs. Even so, they drew up a protocol that strictly limited the scope of application and the severity of coercive interrogation, to the point that only 3 important Al Qaeda members were waterboarded. At the time, as I have stated before, the majority of the American public would have supported lowering the planners of 9-11 into boiling oil if it would have helped, and nobody even imagined that using the same techniques that we use on our own troops would, years later, be considered a crime.

As a thought experiment, consider how this debate would look if the August 2006 airplane plot had succeeded. To refresh your memory, that well developed plot would have caused about a dozen jumbo jets full of people to explode over heavily populated US cities.

After seeing the images of the bodies falling through the sky and the burned remains of people on the ground (if our press had the cojones to show it), I suspect the folks in Quantanamo would have had their trip to the 72 virgins suddenly accelerated.

It is so easy, and so dishonest, to take historical events out of their context and judge them later. The danger of this practice is the reason that "Monday morning quarter-backing" is a common slang phrase.
4.24.2009 7:59pm
A.S.:
[A.S. I was referring to the pirate action as act of war bit.]

Well, I don't think a formal declaration of war is needed. However, I think a good argument can be made that some kind of Congressional action was needed. For example, when Jefferson took action against pirates in the First Barbary War, Congress didn't declare war, but they did authorize Jefferson to take action against the pirates.

If Congress felt it necessary with respect to Jefferson, why is it not required for Obama?

Also remember that it is the law of the land that "The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

Does an attack upon a US flagged merchant ship constitute a "national emergency"? I think not.

Accordingly, not only do I think Obama may have acted unconstitutionally in attacking the pirates without authorization from Congress, but he may also have violated the War Powers Act.
4.24.2009 8:00pm
A.S.:
To which post do you refer, Sarcastro?

Yes.


No, no, no. That only works if had asked "do you mean my 7:04 post or my 7:07 post".
4.24.2009 8:02pm
Steve:
nobody even imagined that using the same techniques that we use on our own troops would, years later, be considered a crime.

It's more like, nobody imagined that using the same techniques that we use when preparing our troops to deal with torture would be considered anything OTHER than torture. Until torture became the latest partisan issue where everyone is required to put aside common sense in favor of the latest talking points, that is.
4.24.2009 8:11pm
zuch (mail) (www):
Clayton Cramer:
In 2002, if you had suggested that waterboarding people that had planned 9/11 would lead to prosecutions, people would have laughed at you.
I was referring to the response of the prosecutorial authorities, not the "people" (or the lynch mob, as the case may be). Are you suggesting that legal authorities don't care whether something is legally justified?

I have a few words for you to consider: "Arar". And "El-Masri". And "Dilawar". And an image: this poor guy.

Cheers,
4.24.2009 8:12pm
A.S.:
It's more like, nobody imagined that using the same techniques that we use when preparing our troops to deal with torture would be considered anything OTHER than torture.

Presumably, Obama can be brought up on charges of torturing our own troops then. Since nobody would believe those techniques are anything other than torture, and Obama is ordering our troops to engage in those techniques as part of the SERE training.
4.24.2009 8:13pm
Andrew J. Lazarus (mail):
A.S.—Hunh? Piracy is a defined crime (18 USC 81). Are you claiming that Obama had no right to order the military to attack pirates? I don't think so, any more than a civilian police SWAT team to attack bank robbers with hostages.

John Moore—Yet another question for you to duck. The issue is really quite simple: is there some strange blanket amnesty for committing torture at the end of the Administration's term or not. I don't believe we would apply such generous amnesia to a post-Hitler German government. At this moment the Congress is (probably stupidly) wrestling with the Armenian genocide. How come we are looking at crimes committed in 1915 maybe 10000 miles away, in which every suspect is surely dead by now, but torture committed by our own nationals very recently is exempted. As far as your source that the frequency of waterboarding is exaggerated, your own source's arithmetic doesn't add up (actually, multiply up) correctly.
4.24.2009 8:14pm
Sarcastro (www):
[War Powers Resolution. Passed in 1973. If I recall, the President can act for 60 days before getting Congress' permission, with an automatic 30 day extension if the President writes down he wants an extension.

So Congress has acted.]
4.24.2009 8:15pm
Steve:
Presumably, Obama can be brought up on charges of torturing our own troops then. Since nobody would believe those techniques are anything other than torture, and Obama is ordering our troops to engage in those techniques as part of the SERE training.

I really find it difficult to believe that anyone is a big enough idiot to believe this is a good argument, but somehow it keeps popping up all over the blogs. Go figure.

On a separate note, I seem to be unable to locate the section of the War Powers Resolution that provides for criminal prosecution.
4.24.2009 8:18pm
zuch (mail) (www):
Seamus:
Oh, I don't know. Because no one showed any interest in prosecuting Bill Clinton for the kind of perjury that got lesser mortals sent to jail?
Clue fer ya: Perjury has three elements that must be shown. See, e.g., U.S. v. Gaudin. The Starr Chamber carefully elided one of these, and this element is in fact missing from the actual articles of impeachment ... the Republicans really wanted to paper over the fact that what they were charging wasn't actually a crime (not to mention that one other relevant element of 18 USC § 1621 is that the affiant believe that what they said was false, not simply that it was false).

Then there's the fact that most (actual) perjury is not prosecuted; in many civil trials, the sworn statements of the two side are mutually exclusive so that at least one side is not telling the truth. The general approach is to let the side who is the least believable simply lose the case....

Care to comment on my USN&WR article?

Cheers,
4.24.2009 8:20pm
A.S.:
A.S.—Hunh? Piracy is a defined crime (18 USC 81). Are you claiming that Obama had no right to order the military to attack pirates? I don't think so, any more than a civilian police SWAT team to attack bank robbers with hostages.

The military isn't the appropriate agency for crime-fighting. The Constitution specifically references the military - and in certain cases, Congressional authorization is needed to use the military. Attacking pirates required Congressional authorization for Jefferson; I think that perhaps it was necessary for Obama also.

So, no. If he wanted to send the FBI to deal with the pirates and hostage, I'd have no problem. But the military is treated differently by the Constitution.
4.24.2009 8:23pm
Abdul Abulbul Amir (mail):

....nobody even imagined that using the same techniques that we use on our own troops would, years later, be considered a crime


Not so. The looney left knew it for a fact.
4.24.2009 8:24pm
zuch (mail) (www):
Mew:
Is there a precise legal definition of Treason?
It's the only crime to be specifically defined in the Constitution (and precisely because such a charge shouldn't be left to political vicissitudes).

Cheers,
4.24.2009 8:24pm
A.S.:
[War Powers Resolution. Passed in 1973. If I recall, the President can act for 60 days before getting Congress' permission, with an automatic 30 day extension if the President writes down he wants an extension.

The President can act for such period of time only if it is within his power as Commander in Chief.
4.24.2009 8:26pm
A.S.:
On a separate note, I seem to be unable to locate the section of the War Powers Resolution that provides for criminal prosecution.

Excellent point.
4.24.2009 8:27pm
zuch (mail) (www):
Clayton Cramer:
2. As I understand, a total of three high value al-Qaeda officials were subjected to waterboarding. I suspect that the belief was, "We have no intention of doing this on a regular basis--this is a 'Jack Bauer' sort of moment."
I'll keep that in mind. I'll tell the judge: "Your Honour, I really don't intend to make a practise of murder. Just two or three people who really deserved it and then I'm through. Can I go now, Your Honour?"

Cheers,
4.24.2009 8:28pm
Jagermeister:
My, my, what a chorus of people retroactively defining "torture" to fit their polical inclinations:
zuch: That said, Obama should do what the law requires, not what is politically expedient (either way).

Apodaca: the previous administration put into place, and then intentionally set into motion, a systematic program for conducting torture.

Troll: I don't understand why we have laws specifically designed for deterring bad conduct by people in power if we don't intend to enforce them.

Lazarus: If it was so clear that the US would have approved torture after 9/11, why didn't the Administration simply ask for the repeal of the Torture Act and withdraw from the relevant treaties?

The inconvenient fact is that "torture", per se, was poorly defined in U.S. law, particularly regarding issues of to whom the law was to apply. People may argue all they want with Yoo's interpretations, but if they are honest they must acknowledge that his interpretations only became necessary because of the vacuum that Congress (and the courts) created in not defining the issue clearly in legislation.

It may be clear, now, that waterboarding is "torture", but only because of what amounts to an executive order defining it as such. I would think that attempting to apply the definition retroactively would constitute an ex post facto application, and be contrary to the Constitution. But, and here is the critical point, accepting such a state (that what was once cloudy, at best, is now illegal) would require accepting that those who approved the method, acted in good conscience, and it is that point which the promoters of show trials cannot abide.

Those yelling for the heads of Yoo and such are not defending the "rule of law" - they are using it as a fig leaf for engaging in the lowest form of political bigotry. But they should be very, very careful, because if they persist in treating people like criminals for political reasons, they may find that some of their victims may start to behave like criminals. If people feel the state has become their enemy, may they not strike back, by any means available, at those who have incited the state to criminalize them?

If I were one of the liberal pundits agitating for show trials, I would first make sure I had first class body guards, and maybe a Kevlar vest. Some of their victims may decide to take things personally.

Not an encouragement, just an observation. Its not wise to antagonize people needlessly.
4.24.2009 8:28pm
Gilbert (mail):
Deliberate continuation of the prolonged arbitrary detentions at Bagram in violation of the ICCPR. He explicitly announced the continuation of that policy, making him responsible.

(I actually know almost nothing about who is at Bagram or whether their detention is arbitrary or prolonged)
4.24.2009 8:29pm
Ryan (mail):
AS at 8:13

SERE Training: The "R" stands for Resistance to toture of communist or other nations that violate the Geneva Conventions. Insitutied after airmen and the like were captured in Korea, tortured, and then gave false confessions.

The reason we give our airmen this training (and its only for a few days and not to the level inflicted at Guantanamo and other places, especially since the trainees all know it is just a training excercise they receive after extensive briefing), is to show them that it's not all that hard to break someone and get them to give false confessions. That way, they won't feel like they've completely soiled their honor and shamed America if they are tortured into giving false confessions. So that our military men and women can suffer torture but return to America with their heads held high (like McCain did).

Torture is a crime against the mind, body and soul. And it is also a crime that our leaders ordered the torture of enemies in response to their prior failures, in order to extract confessions.

Take off your Republican blinders for a second, and just be an American and a human being, and remeber that torture is evil and America should never condone it.
4.24.2009 8:33pm
PC:
It may be clear, now, that waterboarding is "torture"

Ignorantia juris non excusat. You would also have to ignore all of the memos from the various branches of the military that described the methods we used as torture, opening up service members to violation of US statutes, the UMCJ and international treaty obligations. You would also have to ignore the FBI's objections to the use of the torture methods too.
4.24.2009 8:35pm
Just an Observer:
SteveL It's more like, nobody imagined that using the same techniques that we use when preparing our troops to deal with torture would be considered anything OTHER than torture.

Indeed. In fact, the DOD unit that created the SERE training called its techniques just that, "torture."

From the Washington Post online today Document: Military Agency Referred to 'Torture,' Questioned Its Effectiveness
4.24.2009 8:36pm
Steve:
It's kind of amusing that John McCain is now consigned to the "looney left" because he believes waterboarding is torture. Gosh, yes, what a radical opinion!
4.24.2009 8:39pm
Mew (mail):
Yes, I know:

Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

But the Constitution says a lot of things that have been interpreted by the courts in many interesting ways.

It certainly seems to me that, in my scenario, an argument can be made for the latter two items. You can imagine that the luvy-duvy sessions with Chavez, and perhaps, before long, with various other anti-American dictators won't help his defense.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

Presumably, this means Congress can impose a sentence of death for an individual act of Treason at its discretion?
4.24.2009 8:39pm
Jagermeister:
Ryan: Torture is a crime against the mind, body and soul.
Why not just say that torture is whatever you define it to be? Crimes against the body leave evidence. Crimes against the mind, may, but you are going to have a hard time getting agreement on that one. How about defaming Mohamed (PBUH)? Does that count as a crime against the mind? It does, to some. As for "crimes against the soul". Give me a break. At least half of the posters on this board do not acknowledge the existence of a soul (except, it seems, as something for which Republicans can be prosecuted for damaging).

What you advocate isn't law. Its an Inquisition.
4.24.2009 8:39pm
Jagermeister:
PC: You overstate your case, badly. That the military and the FBI had further restrictions on interrogation methods is not a definition of "torture".
4.24.2009 8:42pm
glangston (mail):
Assassinations (targeted killing) of AQ leaders or other terrorists. Surely these are more egregious than the torture of high-value terrorists.

Or maybe we will further tie our hands and make "targeted killings" illegal. That would at least be consistent with the stand on torture.
4.24.2009 8:43pm
ArthurKirkland:
Anyone attempting to shield from accountability the Bush administration officials who pushed, implemented (at the policy level) and attempted to sanitize torture owes an explanation of how recurrence is to be avoided without punishing (or at least revealing and shaming) those who kidnapped, tortured, beat prisoners to death, etc.

Otherwise, we need a proceeding to demonstrate the line and discourage recurrence.

Those who don't mind recurrence, of course, are free to advocate a reprise of the recently departed adminstration. Good luck with that, as the continuing stream of evidence -- photographs, memoranda, e-mails, videotapes, disclosures of fatal beatings -- is disclosed. I suspect there is enough material to supply years of a steady stream.
4.24.2009 8:44pm
PC:
Jagermeister, the Joint Personnel Recovery Agency used the word "torture." Maybe they were overstating the case? Probably a bunch of loony liberals looking to gin up a witch hunt. In July 2002.
4.24.2009 8:47pm
neurodoc:
zuch: Wayne Jarvis...I'm quite sure you thought this was clever ... but you'll need to dig a bit deeper to impress anyone around here.
Well, it impressed at least one person here - me. I thought Wayne Jarvis's answer ("Obama ordered the brutal shooting of three misguided teen-aged runaways.") was pretty funny.
4.24.2009 8:47pm
sputnik (mail):
yep, RW slime getting truly desperate ....
4.24.2009 8:47pm
zuch (mail) (www):
Jagermeister:
My, my, what a chorus of people retroactively defining "torture" to fit their polical inclinations:
zuch: That said, Obama should do what the law requires, not what is politically expedient (either way).
The inconvenient fact is that "torture", per se, was poorly defined in U.S. law, particularly regarding issues of to whom the law was to apply.
Care to state where I "defin[ed]" torture, much less to my "political inclinations"? The law says what it says, and adequately defines it, bloviation and persiflage from those that want to ignore its prohibitions notwithstanding.

As for torture being poorly defined, it is no more poorly defined than many other crimes (and in fact is in some respects more specific). No reasonable person should be able to maintain (with a straight face) that they couldn't know what was and was not prohibited. History, treaties, caselaw, and basic human reason should be quite sufficient to suss it out. And as to whom it applies, that is no problem either:

18 § 2340A. Torture

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

For whoever does any such thing within the United States, there's assault, murder, and other statutes that will obviously cover essentially all activities that have been documented.

Note that torture that results in death is a capital offence.

Cheers,
4.24.2009 8:47pm
zuch (mail) (www):
Jagermeister:
If I were one of the liberal pundits agitating for show trials, I would first make sure I had first class body guards, and maybe a Kevlar vest. Some of their victims may decide to take things personally.
Oh. So the perps are similarly dismissive of the laws prohibiting murder, eh? Maybe you ought be a bit careful before you "slander" them so. You know, they "may decide to take things personally".... ;-)

Cheers,
4.24.2009 8:52pm
PC:
For whoever does any such thing within the United States, there's assault, murder, and other statutes that will obviously cover essentially all activities that have been documented.

Yes, but look how vague those statutes are.

18 U.S.C. § 1111 Murder

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing;

Just look how poorly defined that is. What's this aforethought thing? Is that even a real word? What about the phrase "any other kind?" You could drive a truck through a loophole like that.

I have a suggestion for anyone that thinks waterboarding isn't torture. Go grab your least favorite congresscritter and waterboard him against his will. See if you are brought up on charges of torture. Maybe you can convince the Federal authorities you just playing a fraternity prank?
4.24.2009 8:55pm
neurodoc:
Mac, you accused the wrong person of being obtuse and/or lacking a sense of humor. It was zuch, not Clayton Cramer, who took exception to Wayne Jarvis's "Obama ordered the brutal shooting of three misguided teen-aged runaways."
4.24.2009 8:58pm
Bad (mail) (www):
"It's kind of amusing that John McCain is now consigned to the "looney left" because he believes waterboarding is torture. Gosh, yes, what a radical opinion!"

Don't forget that darling of the liberal left, Ronald Reagan, who signed our treaties against torture and included signing statements condemning it even more harshly than the treaty itself called for.

Or those weak-kneed liberals who EXECUTED Japanese torturers for using the "water cure" in their interrogations, condemning that as a high war crime.

If only we'd had Prof. Kopel's standard of "don't look backwards, it's so unseemly and politicized!" then?
4.24.2009 8:58pm
zuch (mail) (www):
Mew:
You can imagine that the luvy-duvy sessions with Chavez...
Give it a rest, willya?!?!? <*SHEESH*> After Bill O'Lielly had his a$$ handed to him by Olberman with his patent nonsense about Nixon never meeting Chairman Mao, you'd think that you folks would catch a clue, but no....

And just a FYI, Chavez, even with any authoritarian tendencies he has, is not a "dictator" in any rational sense of the word, having been elected (by a greater margin than Dubya) more than once. I wouldn't think this would be news, but there it is, just so there is no further confusion.

Cheers,
4.24.2009 8:59pm
Steve:
Presumably, this means Congress can impose a sentence of death for an individual act of Treason at its discretion?

I don't see that. I take the language to mean that Congress gets to define the punishment for the crime of treason in general, not that they get to declare the sentence in each individual case.

Also, I'm with neurodoc on the pirate thing. It was funny dammit!
4.24.2009 8:59pm
PC:
Or those weak-kneed liberals who EXECUTED Japanese torturers for using the "water cure" in their interrogations, condemning that as a high war crime.

Careful. You may get some wingnuts to start discussing how many torturers can dance on the head of a detainee.
4.24.2009 9:03pm
zuch (mail) (www):
Mew:
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
Presumably, this means Congress can impose a sentence of death for an individual act of Treason at its discretion
It's getting a bit OT but: You're not understanding it. This means that the progeny of a traitor cannot be punished for their parent's crime ("corruption of blood"), and that any punishment should not extend in perpetuity past the end of the person's life (no seizure of the assets or income of the heirs, etc. (the second clause). A bit archaic, but a good Google might have cleared that up for you. Something I heartily recommend.

Cheers,
4.24.2009 9:08pm
Tim H. (mail):
I just have to fundamentally disagree with the premise of the question. If Obama has commited a gross violation of the law, he should absolutely be prosecuted.

I'd also like to point out that we are not dealing with ordinary abuses of power here...we are dealing with the systematic, and unconscionable torture of detainees using methods developed in Communist China to illicit false confessions

We already know that at least one person was prosecuted to try to fortify a non-existent link between Sadaam and Al Queda...that's pretty bad...

At the very least there needs to be a full public accounting...of the same variety that Republicans called on for the Rich pardon in 2001 when Bush took office.

Also, do you really want to be the people to argue in favor of torturers? We (the people of this site) are people who love the law, presumably because we care about certain fundamental inalienable rights that our law represents. The right not to be tortured should be chief amongst any of those rights.
4.24.2009 9:14pm
Hugh Jass (mail):
I wonder how many of the people who think that it's not necessary to investigate whether crimes occurred w/r/t torture also argued that Clinton needed to be impeached in order to uphold "the rule of law."

For what it's worth, I supported Clinton's impeachment at the time.
4.24.2009 9:15pm
John Moore (www):
Andrew:

John Moore—Yet another question for you to duck.

That added a lot to the debate.

The issue is really quite simple: is there some strange blanket amnesty for committing torture at the end of the Administration's term or not. I don't believe we would apply such generous amnesia to a post-Hitler German government. At this moment the Congress is (probably stupidly) wrestling with the Armenian genocide. How come we are looking at crimes committed in 1915 maybe 10000 miles away, in which every suspect is surely dead by now, but torture committed by our own nationals very recently is exempted.

Well, let's look at a few things here.

Your examples imply a seriousness of crime similar to that of the Nazi atrocities or the Armenian genocide. That's preposterous and you know it. So you have violated Godwin and should be prosecuted.

Second, if the definition were widely accepted by the American people, and the results of the prosecution would be useful rather than terribly divided, you might be right.

But of course, those screaming for perrosecution ignore the normal practice of prosecutorial discretion (which appears to exist throughout our system except for "special prosecutors").

I argue that prosecutorial discretion to not prosecute is not only proper here, but to prosecute is extremely irresponsible and dangerous to our republic.

BTW, the legality that we cannot prosecute Nancy Pelosi for here aiding and abetting of this "crime" is hardly going to help the American public swallow this witch hunt.
4.24.2009 9:15pm
dmv (mail):
I think we should prosecute Kopel for this inane thread.
4.24.2009 9:17pm
John Moore (www):

I wonder how many of the people who think that it's not necessary to investigate whether crimes occurred w/r/t torture also argued that Clinton needed to be impeached in order to uphold "the rule of law."

In case it wasn't clear... I supported the impeachment of Clinton and have since repented. It clearly led to undesirable results.

Perhaps the persecutors here would consider the remedy that *was* applied successfully to Clinton - disbarment. After all, that is a sanction that can be taken against these lawyers that would discourage such actions in the future without a national show trial.
4.24.2009 9:17pm
Mew (mail):
Zuch,

You are missing my point. I'm not saying it's necessarily a good argument. But plainly the right thinks that it is. Nothing I've said has been meant to defend the Bush administration either.

The basic anti-torture argument has always been the same: "The US cannot torture, no matter what the consequences."

Most people I've met who believe that argue (perhaps correctly) that torture doesn't work. When pressed on the point, they admit they prefer to see an attack take place (with whatever casualties) even if it could be prevented by torture. That's what the Obama administration is implicitly saying if it moves to trials.

But if they charge members of the last administration (and if they do, how can they not charge Bush himself?), they've broken a long standing political taboo.

Now fast forward after all of the trials to a collapse in Pakistan, and imagine that there's another major attack on US soil (perhaps nuclear?). It will be easy for the GOP to press the obvious A implies B argument. Note that it makes no difference if this argument is correct, only that the population is inclined to believe it.

How do you think the members of the Obama administration are going to fair under the rabid GOP government that then follows with this precedent set?
4.24.2009 9:19pm
John Moore (www):
Ryan:

The reason we give our airmen this training (and its only for a few days and not to the level inflicted at Guantanamo and other places, especially since the trainees all know it is just a training excercise they receive after extensive briefing), is to show them that it's not all that hard to break someone and get them to give false confessions. That way, they won't feel like they've completely soiled their honor and shamed America if they are tortured into giving false confessions

As a SERE graduate, I have highlighted the signficantly misleading part of your explanation. The exercise was, among other things, to teach that you could be interrogated to give information of value and false confessions, so that you could deal with the consequenes of this.

We were specifically trained to know that we might be forced to yield classified information and other useful intelligence.

Want to try again?
4.24.2009 9:22pm
Great Idea!:

I have a suggestion for anyone that thinks waterboarding isn't torture. Go grab your least favorite congresscritter and waterboard him against his will.


I think waterboarding is torture, and for that reason I'd love to give it a try on a congresscritter. I'll bet said congresscritter would think twice about molesting my wallet the next time around. And my free speech rights. And my right to bear arms. And, well, you get the point.
4.24.2009 9:26pm
John Moore (www):

Anyone attempting to shield from accountability the Bush administration officials who pushed, implemented (at the policy level) and attempted to sanitize torture owes an explanation of how recurrence is to be avoided without punishing (or at least revealing and shaming) those who kidnapped, tortured, beat prisoners to death, etc.


Anyone who wants to prosecute these people owes an explanation for:

1) why this prosecution is worth the terrible political polarization that it would cause

and

2) why we should never, ever, repeat the specific constrained practices no matter what the circumstances.
4.24.2009 9:29pm
John Moore (www):

Or those weak-kneed liberals who EXECUTED Japanese torturers for using the "water cure" in their interrogations, condemning that as a high war crime.

Or that weak-need liberal, McCarthur, who had a Japanese general executed simply because McCarthur was offended by him.

So I guess, by the historical reasoning quoted, it's not okay to torture the terrorists, but we can execute them simply out of dislike.
4.24.2009 9:30pm
Mac (mail):

Also, do you really want to be the people to argue in favor of torturers? We (the people of this site) are people who love the law, presumably because we care about certain fundamental inalienable rights that our law represents. The right not to be tortured should be chief amongst any of those rights.


I rather like the right to life, myself. I rather think most Americans agree.

What do you do about the 1000's of US soldiers who have been water boarded as part of their training? Should they sue? Oh, wait, the enemy will do whatever they want and water boarding would be the least of our soldiers problems, but it is a good idea to know what to expect in case of capture. Of course, beheading is more likely.

OK, so thousands of US soldiers have been waterboarded by the military, but it is incredible torture for Al Queda. Got it.
Do you have any idea how much you cheapen torture and evil when you carry on like this? There is no connection or relativity to the Nazis among others. You merely sound hysterical and fanatical. Come down from the Ivory Tower, please, before you get us all killed.
4.24.2009 9:30pm
Nom duh ploome:
After watching this thread develop, I'd like to suggest a future topic for the editors of this blog. Start a thread to set the over/under for the start of the next civil war(or War Between the States, if you prefer).

Of course, I'd really like to avoid it, myself. Bad for business, keeps the kids up at night, that sort of thing. But life seem to be getting a bit nasty, both parties are bereft of grownups, well, idle speculation is a fine sport for the blogosphere.

I'll start. My guess: 2015
4.24.2009 9:41pm
PC:
What do you do about the 1000's of US soldiers who have been water boarded as part of their training?

Another person that doesn't understand the difference between sex and rape.
4.24.2009 9:42pm
Anderson (mail):
How can anyone be stupid enough not to distinguish VOLUNTARY waterboarding ("SERE training") from INVOLUNTARY waterboarding ("torture")?

Is anyone that stupid?

Really?

Or is it just talking points, to shout people down with, like "four legs good! two legs bad!"
4.24.2009 9:43pm
PC:
Is anyone that stupid?

Your honor, how can my punching that guy be considered battery? Boxers punch each other all the time and no one prosecutes them!
4.24.2009 9:47pm
Anderson (mail):
Kevin Jon Heller writes at Opinio Juris:

Dave Kopel at the Volokh Conspiracy Tries To Be Clever

And proves he is neither very funny nor even remotely interested in anything resembling intelligent debate:


[Quotes above post.]

... I thought it was kind of funny. It's just when you start taking it seriously that the second part of Heller's neither/nor kicks in.
4.24.2009 9:47pm
Superstantial:
DMV for the win
http://volokh.com/posts/1240608202.shtml#570758
4.24.2009 9:48pm
byomtov (mail):
How can anyone be stupid enough not to distinguish VOLUNTARY waterboarding ("SERE training") from INVOLUNTARY waterboarding ("torture")?

Is anyone that stupid?


Apparently so.
4.24.2009 9:57pm
Xenocles (www):
"1) why this prosecution is worth the terrible political polarization that it would cause

and

2) why we should never, ever, repeat the specific constrained practices no matter what the circumstances."

1) That whole "nation of laws" thing is pretty valuable, at least to me. It's also hard to imagine how we could get much more polarized as a nation.

2) The internment of US citizens during WWII may well have prevented some acts of sabotage and espionage, but the hypothetical benefit was outweighed by the blight on our national character. The law and the Constitution aren't like Vietnam; we can't save them by destroying them.
4.24.2009 9:59pm
Anderson (mail):
The JPRA is the entity that administers the SERE program. Does its former chief of staff think that SERE waterboarding is just like waterboarding al-Qaeda?

Nope.

Daniel Baumgartner, who was the JPRA's chief of staff in 2002 and transmitted the memos and attachments, said the agency "sent a lot of cautionary notes" regarding harsh techniques. "There is a difference between what we do in training and what the administration wanted the information for," he said a telephone interview yesterday. "What the administration decided to do or not to do was up to the guys dealing with offensive prisoner operations. . . . We train our own people for the worst possible outcome . . . and obviously the United States government does not torture its own people."

But torture works, right?

The JPRA attachment said the key deficiency of physical or psychological duress is the reliability and accuracy of the information gained. "A subject in pain may provide an answer, any answer, or many answers in order to get the pain to stop," it said.

In conclusion, the document said, "the application of extreme physical and/or psychological duress (torture) has some serious operational deficits, most notably the potential to result in unreliable information." The word "extreme" is underlined.


Obviously, Mr. Baumgartner must be ignored at all costs. Carry on, torture apologists. Sorry for the interruption.
4.24.2009 10:02pm
Mew (mail):
1) That whole "nation of laws" thing is pretty valuable, at least to me. It's also hard to imagine how we could get much more polarized as a nation.

In that case, imagination isn't your strong suit.
4.24.2009 10:03pm
Mahan Atma (mail):
"As a SERE graduate..."


I'm curious to know:

In SERE training, did they hang you naked, chained from your wrists in an upright position, while depriving you of food and sleep, soaking you with cold water, etc., [b]for weeks at a time?[/b] Only to take you down intermittently to slam you against a wall, and waterboard you for 183 times in a month?

If not, how many times were you waterboarded? And for how long, exactly, were you subjected to the methods above? How long were you chained by your wrists from above? Days? Weeks? Months?
4.24.2009 10:03pm
Anderson (mail):
Who knew, before this issue broke, that the internets were *teeming* with "SERE graduates"?
4.24.2009 10:07pm
Bonze Saunders (mail):
Since no one else has mentioned it, I thought I'd bring up Japan's infamous WWII atrocity lab, Unit 731. Those responsible (except those captured by the Soviets) were allowed to walk after sharing the results of their research.
4.24.2009 10:10pm
Xenocles (www):
More on nations of laws:

Do we really want to grant our government the implicit authority to break the law any time it feels the need? How about when your party isn't in power?

If the intentions of the offenders were truly benign it doesn't matter with respect to prosecution. The law applies equally to all people within its jurisdiction. Perhaps we can entertain the goals of the torture at sentencing, but not in the charges. The obvious counter-argument is defensive homicide, but don't forget that that's a legally defined exception. The US Code doesn't say "Torture is prohibited unless necessary for national security," it says "Torture is prohibited" (disclaimer: not a quote).
4.24.2009 10:10pm
Just an Observer:
Despite the unseriousness of this thread, might we segue to a more sober, related idea that Michael C. Dorf proposes, Why President Obama Should Consider Pardoning those Who Designed, Authorized, and Carried Out the Bush Policy of Abusing Detainees?

Dorf's conclusion, which also is something I have mulled over occasionally, is this:

By pardoning, rather than merely not prosecuting, the architects of and participants in the Bush policy of detainee abuse, the Obama Administration could send a signal that offenses were, in fact, committed. Of course, pardons will not satisfy those who believe--with considerable justification--that prosecutions would be the better course. But pardons would formalize what appears to be the best explanation for the potential Obama policy of simultaneously repudiating the conduct and seeking to reconcile the country.


I think this is a thinkable outcome, although I think the timing would be premature right now.
4.24.2009 10:12pm
MarkField (mail):

Well, it impressed at least one person here - me. I thought Wayne Jarvis's answer ("Obama ordered the brutal shooting of three misguided teen-aged runaways.") was pretty funny.


I thought it was satire. And funny.
4.24.2009 10:33pm
Moneyrunner43 (www):
Oh no, not the caterpillar!
4.24.2009 10:44pm
Anderson (mail):
Hadn't seen that notion, JaO.

I believe accepting a pardon is voluntary? So that anyone who insists he committed no crime, need not accept the pardon and implicitly concede guilt? (Haven't thought about this since Scooter Libby.)

... Speaking of whom: Anyone notice that the CIA's enthusiasm for torture seems to reduce the likelihood that it was Cheney/Libby/Addington pushing for it? Or at least, make it unclear where that fits into the timeline?

Of course, if I'm overlooking something, I'm all ears. Haven't read the Senate ASC report yet for instance. (Printing it off today felt like achievement enough for one day.)
4.24.2009 10:46pm
Moneyrunner43 (www):
I’m really on the fence about using enhanced interrogation on terrorists if I could be sure that their next target was a law school.

Just kidding, I’m not on the fence at all. Go for it. I’m sure that the lawyers and the aspiring ambulance chasers wouldn’t mind. Greatest good for the greatest number.

Especially if we don’t hurt the caterpillars.
4.24.2009 10:48pm
Moneyrunner43 (www):
These bestial acts of caterpillar abuse must end.

PETA
4.24.2009 10:49pm
Moneyrunner43 (www):
I’m rather sorry that water boarding seems to have shortstopped an attack on LA. In view of the legal bills that resulted from the attack on the twin towers and the pentagon, it would have been good for the lawyers. God knows that they are suffering terribly in this recession. Some firms are reducing the pay of associates who bill les than 1800 hours.

The horror.
4.24.2009 10:58pm
ArthurKirkland:
The "admit and accept pardon or decline and face punishment" approach might be worth considering. A few resignations -- Bybee, Yoo come to mind immediately -- would be appropriate.

The line must be demonstrated, mainly because we should not take the chance that another overmatched, frightened, brittle, decency-deficient administration is in the wrong place at the wrong time.
4.24.2009 10:58pm
Ben P:

I think we should prosecute Kopel for this inane thread.



Are you kidding? I've had more fun reading this thread that I've had in a week. Seriously, this is a riot.
4.24.2009 11:00pm
Moneyrunner43 (www):
Waterboarding is worse than having your head cut off. If you are waterboarded you will re-live the horror of your torture for the rest of your life. Not so with beheading. Just ask Daniel Pearl.

Now, being put in a cage with a caterpillar is a totally different level of torture.

Case closed.

Best.
Moneyrunner
4.24.2009 11:05pm
Mark Rockwell (mail):
Seriously?!
4.24.2009 11:09pm
Moneyrunner43 (www):
Is there some way we can dig up FDR and Truman and put them on trial? Are any of their minions still alive? I know their kids are, and we know that the sins of the fathers are visited on the children.

Come on people, we have some good legal minds here.

Or not.

Best,
Moneyrunner
4.24.2009 11:09pm
Moneyrunner43 (www):

The line must be demonstrated, mainly because we should not take the chance that another overmatched, frightened, brittle, decency-deficient administration is in the wrong place at the wrong time.



That's a terrible way to talk about Team Obama. I, for one, will stand up for The One.

Best,
Moneyrunner
4.24.2009 11:13pm
MarkField (mail):

I think we should prosecute Kopel for this inane thread.


I thought he was waiting to see how many posts there'd be before someone wondered if Obama had gotten a blow job. Now that's the sort of conduct which needs to be criminalized.
4.24.2009 11:13pm
ArthurKirkland:
Maybe it will turn out that torture prevented an attack, but I thought the timeline was unkind to the belief that the "L.A. tower" plot was that attack.

And maybe it will turn out that Iraq was the right country to invade after all, and that video the president made of his search under desks and in closets for the WMDs won't be such a riot anymore.

As Jim Carrey said to Lauren Holly, after being informed that his chance at her was 'maybe one in a million':

"So what you're telling me . . . THERE IS A CHANCE!!!"
4.24.2009 11:16pm
MarkField (mail):

By pardoning, rather than merely not prosecuting, the architects of and participants in the Bush policy of detainee abuse, the Obama Administration could send a signal that offenses were, in fact, committed. Of course, pardons will not satisfy those who believe--with considerable justification--that prosecutions would be the better course. But pardons would formalize what appears to be the best explanation for the potential Obama policy of simultaneously repudiating the conduct and seeking to reconcile the country.


Obama would have to waive the pardon guidelines for this to happen.
4.24.2009 11:16pm
Moneyrunner43 (www):
To those of you who claim that Obama can’t fire company presidents and board of directors, I scoff. It’s right there in article 13 of the Constitution.

What are they teaching in law school these days?

Best,
Moneyrunner
4.24.2009 11:17pm
Just an Observer:
Anderson: I believe accepting a pardon is voluntary? So that anyone who insists he committed no crime, need not accept the pardon and implicitly concede guilt?

That's what Jerry Ford always maintained. Reportedly, for the last decades of his life, he carried in his wallet a tattered slip of paper making that argument about Nixon.

I don't know for sure, and have even wondered whether a pardon can be issued whether the beneficiary "accepts" it or not. If the constitutional pardon power is plenary and trumps everything else, maybe not. If I were Obama, and Dick Cheney turned down a pardon, I might issue it anyway and say, "So sue me."

At any rate, this is spitballing at this point. Morally and politically I think it would be seem grossly early to pardon anyone yet. The Nixon pardon came after two years of special prosecutors (including conviction of senior players), Senate select committee hearings, impeachment proceedings, etc. The whole country, absent a fringe minority, was convinced of Nixon's culpability.

So far today, there has been zero accountability, and this is just starting to register on the public's radar. And if Obama ever makes a grand gesture, others should too. Bybee clearly should resign, for example. (If I were his best friend, I would advise him to take that step relatively soon for multiple reasons. An honorable patriot in his shoes would resign from the bench and apologize.)

But eventually, if Obama truly believes that national political comity demands that he trump criminal justice, the pardon power is at least constitutionally legitimate.
4.24.2009 11:19pm
Constantin:
Nevermind the fact that issuing pardons to Bush and Cheney would be the most passive-aggressive, cowardly duck in recent American history.

(Which actually makes it more likely Barack will do it. Ask an Armenian.)
4.24.2009 11:23pm
Moneyrunner43 (www):
Arthur, Arthur, Arthur,

Why would any Jihadist try to bring down the “LA Tower.” It’s the same thing with the World Trade Center, once they failed, they would not try again.

Besides, Islam is a religion of peace. These people are our friends.

Best,
Moneyrunner
4.24.2009 11:23pm
Michael Ejercito (mail) (www):

If you don't want previous administrations to go to jail, then don't let them get away with torture, a staple of banana republics.

Do the enhanced interrogation methods constitute torture?

The only interrogation method that could arguably be assault and battery is waterboarding.
4.24.2009 11:24pm
Michael Ejercito (mail) (www):

The internment of US citizens during WWII may well have prevented some acts of sabotage and espionage, but the hypothetical benefit was outweighed by the blight on our national character. The law and the Constitution aren't like Vietnam; we can't save them by destroying them.

The internment violated no laws nor the Constitution; in fact, the U.S. Supreme Court upheld the internment.
4.24.2009 11:26pm
Richard Aubrey (mail):
DK asked a rhetorical question.
If a dem or Obama particularly does this sort of thing...of course not.
This is designed to keep people from working for republican administrations. We will bankrupt your ass even if you're innocent--see the White House Travel Office.
Morality? Among lawyers? Pull the other one.
Lawyers argue what they're paid to argue. Who would trust another display of automatic outrage?
4.24.2009 11:28pm
Anderson (mail):
The only interrogation method that could arguably be assault and battery is waterboarding.

Not my area of the law, but slapping someone in the face isn't assault &battery?

I thought assault = swing + miss, battery = swing + hit.
4.24.2009 11:29pm
Moneyrunner43 (www):
Is threatening someone with a caterpillar illegal, or just immoral?

Best,
Moneyrunner
4.24.2009 11:29pm
Michael Ejercito (mail) (www):

Prosecute them both. Prosecute them all. If this leaves few willing to work for the government, so much the better. The idea that the rule of law should be trumped by concerns that CIA recruiting might be more difficult if employees know they have to obey the law is pernicious.

Would you rather that our allies in Afghanistan, Iraq, and Israel conduct the interrogations?

That would keep our hands sterile, but the detainees might start wishing that the CIA was conducting the interrogations.
4.24.2009 11:29pm
Anderson (mail):
in fact, the U.S. Supreme Court upheld the internment.

The Supreme Court may yet hold that waterboarding isn't torture, depending on Anthony Kennedy's mood that day. [Shudder.]
4.24.2009 11:30pm
Michael Ejercito (mail) (www):

Not my area of the law, but slapping someone in the face isn't assault &battery?

I thought assault = swing + miss, battery = swing + hit.

Was that one of the interrogation methods?

If so, a case can be made for assault and battery, but not torture.
4.24.2009 11:30pm
Michael Ejercito (mail) (www):

The Supreme Court may yet hold that waterboarding isn't torture, depending on Anthony Kennedy's mood that day. [Shudder.]

Torture involves things like whipping, scourging, electrocution, impalement, crucifixion, maiming, etc.

Vlad the Impaler would think that waterboarding is some sort of spa treatment.

It could constitute assault and battery. Of course, there is no universal jurisdiction over assault and battery, so any waterboarding by civilians taking place in Afghanistan would fall exclusively under local jurisdiction.
4.24.2009 11:33pm
Anderson (mail):
Would you rather that our allies in Afghanistan, Iraq, and Israel conduct the interrogations?

Actually, we would rather that no one torture anyone. On our behalf, or otherwise.
4.24.2009 11:33pm
Mark in Texas (mail):
It is interesting to see the absolute certainty with which advocates for criminally prosecuting their political opponents. I am also fascinated by the absolute conviction that either water boarding never works or that even if it does, there is no cost that would be worth the stain to our national honor that could justify its use ever under any circumstances.

Perhaps we will not experience the predicted ill effects. I hope we can avoid the worst consequences. Certainly some of those predictions are probably overwrought. The policies advocated by so many on this board are probably not going to get us all killed. Most likely it will only get a few thousand, at most a few tens of thousand Americans killed. Most of those killed will be in cities so the odds are that they will be predominantly Democrats so in the long term this kind of thinking is inherently self limiting.
4.24.2009 11:33pm
PC:
The only interrogation method that could arguably be assault and battery is waterboarding.

At a minimum "walling" would fit that definition too.

I wonder why the CIA was forced to have a physician present during the waterboardings on standby with a tracheotomy kit? Was there a situation where one was needed earlier and wasn't available?

"...a detainee could suffer spasms of the larynx that would prevent him from breathing even when the application of water is stopped and the detainee is returned to an upright position."

Hmm.
4.24.2009 11:34pm
Anderson (mail):
Torture involves things like whipping, scourging, electrocution, impalement, crucifixion, maiming, etc.

First time at a VC torture thread?

Torture is the intentional infliction of severe pain or suffering, physical or mental, absent legal sanction, under color of law.

Note btw that most of your methods of "torture" are actually executions. Jesus was not tortured for our sins.
4.24.2009 11:37pm
Moneyrunner43 (www):
Richard,

We can prosecute Team Obama for breathing. They are – after all –emitting gasses that are endangering the planet and will lead to the melting of the polar ice caps, and the death of cute little furry polar bears. The EPA has decreed it, the Supremes have blessed it, it must be true.

Better yet, it’s a crime against all of humanity.

Hanging’s too good for them.

Best,
Moneyrunner
4.24.2009 11:39pm
Anderson (mail):
Mark in Texas, I encourage you to write your representatives to urge the repeal of the Torture Act. I would expect no less of most Texans.

Meanwhile, whether torture works or not, is a little bit like whether robbery works or not, as I believe Mark Field has pointed out.
4.24.2009 11:39pm
A.S.:
Another person that doesn't understand the difference between sex and rape.

Hmmmm. I see where in the rape statute that consent is a defense. Can you please point me to the language in the torture statute which provides that consent is a defense?

Thanks in advance.
4.24.2009 11:43pm
Xenocles (www):
"The only interrogation method that could arguably be assault and battery is waterboarding."

That, and the "facial slap," and the "abdominal slap." If James Stockdale (John McCain might actually be useful for a change here) were still alive, you could ask him about his experience in Hanoi, during which he and other prisoners had their arms tied behind their backs for long periods, which sounds a bit like "stress positions." Try doing it on your own for fun sometime. On more than one occasion I had to stand at parade rest for an extended time - it hurts, and the only thing holding me then was just my own will. (Ironically, one of those occasions was a ceremony honoring Stockdale.)
4.24.2009 11:44pm
PC:
Would you rather that our allies in Afghanistan, Iraq, and Israel conduct the interrogations?

That would keep our hands sterile, but the detainees might start wishing that the CIA was conducting the interrogations.


You might be surprised to learn that we have had other countries torture at our behest. Maher Arar is a Canadian citizen that we sent to Syria where he was beat with shredded cables and forced to confess about being involved with al Qaeda (he wasn't).

We sent Binyam Mohamed to Morocco where the authorities allegedly sliced up his chest and genitals. He confessed to all sort of things, but hey, torture can do that. All charges against him were dropped and he was returned to the UK.

All of these, btw, are a violation of the Convention Against Torture. If I had to make an educated guess, I would say we are only seeing the tip of the iceberg.
4.24.2009 11:44pm
Moneyrunner43 (www):
Mark,
You have to understand that the only reality is the law and the proper prosecution of your political enemies. All else is a mere chimera.

I do wish that more law schools were in high rise buildings that are easier targets of planes. Do you realize how hard it is to fly into a low-rise building in the middle of a campus? Law schools are not marked on flight maps. We should work on that.

Best,
Moneyrunner
4.24.2009 11:46pm
Michael Ejercito (mail) (www):

Actually, we would rather that no one torture anyone. On our behalf, or otherwise.

Fine.

Of course, our laws do not govern the conduct of our allies in Afghanistan, Iraq, or Israel.
4.24.2009 11:47pm
A.S.:
Your honor, how can my punching that guy be considered battery? Boxers punch each other all the time and no one prosecutes them!

Again, I see in the battery statute where consent is a defense. Please point me to the language in the torture statute which provides that consent is a defense?

Thanks again.
4.24.2009 11:47pm
Michael Ejercito (mail) (www):


You might be surprised to learn that we have had other countries torture at our behest. Maher Arar is a Canadian citizen that we sent to Syria where he was beat with shredded cables and forced to confess about being involved with al Qaeda (he wasn't).

We sent Binyam Mohamed to Morocco where the authorities allegedly sliced up his chest and genitals. He confessed to all sort of things, but hey, torture can do that. All charges against him were dropped and he was returned to the UK.

All of these, btw, are a violation of the Convention Against Torture. If I had to make an educated guess, I would say we are only seeing the tip of the iceberg.

Then those "torture" memos were simply outright stupidity .

We can simply outsource interrogation to experts in Afghanistan, Iraq, Israel, and other allies in the War on Sand Nazi Terror. No harm, no foul.
4.24.2009 11:48pm
Michael Ejercito (mail) (www):

That, and the "facial slap," and the "abdominal slap." If James Stockdale (John McCain might actually be useful for a change here) were still alive, you could ask him about his experience in Hanoi, during which he and other prisoners had their arms tied behind their backs for long periods, which sounds a bit like "stress positions." Try doing it on your own for fun sometime. On more than one occasion I had to stand at parade rest for an extended time - it hurts, and the only thing holding me then was just my own will. (Ironically, one of those occasions was a ceremony honoring Stockdale.)

Were "stress positions" the worst form of abuse the POW's experienced?
4.24.2009 11:50pm
Michael Ejercito (mail) (www):

Torture is the intentional infliction of severe pain or suffering, physical or mental, absent legal sanction, under color of law.

Since the CIA does not claim to exercise police powers, then what they do is never torture.
4.24.2009 11:51pm
Moneyrunner43 (www):
This is a very informative thread. It seems that the military who voluntarily undergo waterboarding now have a cause of action against the government.

Who knew?

Moneyrunner
4.24.2009 11:53pm
A.S.:
This is a very informative thread. It seems that the military who voluntarily undergo waterboarding now have a cause of action against the government.

More interesting to me is the fact that every president since the SERE training commenced, including Obama, is a torturer.

(Unless someone can point me to the provision of the torture statute that provides that consent is a defense.)
4.24.2009 11:59pm
jukeboxgrad (mail):
as:

Presumably, Obama can be brought up on charges of torturing our own troops then. Since nobody would believe those techniques are anything other than torture, and Obama is ordering our troops to engage in those techniques as part of the SERE training.…

Hmmmm. I see where in the rape statute that consent is a defense. Can you please point me to the language in the torture statute which provides that consent is a defense?


From the statute:

“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


The troops are volunteers. They volunteer to be troops, and they are free to leave SERE. If someone is a volunteer (that is, providing "consent") they are not in your "custody or physical control."

There is another reason why the statute does not apply to SERE: the statute concerns itself only with acts performed outside the US.
4.25.2009 12:07am
Andrew J. Lazarus (mail):
It seems that the military who voluntarily undergo waterboarding now have a cause of action against the government.

What an idiot. Makes the other torturers on the thread look like Socrates. Can we take up a collection to send him back to RedState.com?
4.25.2009 12:07am
neurodoc:
ArthurKirkland: Maybe it will turn out that torture prevented an attack, but I thought the timeline was unkind to the belief that the "L.A. tower" plot was that attack.
Treat is as a law school hypothetical (don't "fight" the given fact pattern) and say whether the position(s) you have adopted on "harsh" interrogation, or "torture" if you will, of the likes of KSM would be at all affected if it was in fact the case that the LA tower plot or some other comparably major terrorist attach was thwarted because of the information elicited.
And maybe it will turn out that Iraq was the right country to invade after all, and that video the president made of his search under desks and in closets for the WMDs won't be such a riot anymore.
That video did Bush no credit. It was incredibly stupid, unfunny, and offensive. But that is not to say that there was not good reason to believe that Saddam had WMD, a belief held by different Western intelligence services and encouraged by Saddam himself, who wanted the Iranians to believe it. That the belief subsequently turned out to be an incorrect one doesn't mean that it was a foolish conclusion to reach based upon the available evidence.
4.25.2009 12:08am
A.S.:
If someone is a volunteer (that is, providing "consent") they are not in your "custody or physical control."

They are strapped to a board, so of course they are under physical control.
4.25.2009 12:10am
neurodoc:
Andrew J. Lazarus: What an idiot.
It doesn't lie in the mouth of someone who analogizes the conduct of those who ran Nazi extermination factories (4/24 @ 6:37PM) to the conduct of those who oversaw the interrogation of KSM et al. by whatever means were employed to call anyone else on this board an idiot, or to tell them they ought to decamp.
4.25.2009 12:15am
Just an Observer:
Nevermind the fact that issuing pardons to Bush and Cheney would be the most passive-aggressive, cowardly duck in recent American history.

Hard to think of anyone more cowardly than these two, actually.

Bush and Cheney put ranks and files of subordinates, including soldiers and CIA officers, in jeopardy by issuing orders that were fundamentally illegal, under cover of patently flawed legal opinions that could never stand the light of day. But the principals always expected to remain above the risks, not just the physical risks but even the legal risks, because they are Too Big to Prosecute.

Shame on them.
4.25.2009 12:16am
neurodoc:
Andrew J. Lazarus, why stop where you have with the Nazi analogy, why not go on and liken those who run so-called "factory farms" to those who ran the Nazi extermination camps, as PETA has done? (And no, we're not going to call a halt to this thread just because you have tried to introduce such idiocy to it.)
4.25.2009 12:20am
Alamo (mail):
Adherence to the rule of law is the fundamental precept of our American society.

If we fail to seriously address any infringement of that precept we effectively have diminished its importance and in doing so, have run the risk of destroying the rules and order that we all have agreed to live within. This is something that is so important that to allow any individual to ignore the rule of law is to sanction destruction of society in general. Social order gives way to chaos and disorder and no one is safe. The "law of the jungle" prevails which is a misnomer for there is no law whatsoever.

When anyone is allowed to take the law into that persons hands without limitation or penalty the seeds of societal life are threatened if not ended. Were we not to prosecute those deciding to engage in bank robbery, bank robberies would undoubtedly increase. Prosecuting those responsible for torture policies should go far in curbing its use in the future. If it does not end the practice completely it should make it perfectly clear that its use has consequences for the practioner.
4.25.2009 12:21am
neurodoc:
Just an Observer: Hard to think of anyone more cowardly than these two, actually.

Bush and Cheney put ranks and files of subordinates, including soldiers and CIA officers, in jeopardy by issuing orders that were fundamentally illegal, under cover of patently flawed legal opinions that could never stand the light of day. But the principals always expected to remain above the risks, not just the physical risks but even the legal risks, because they are Too Big to Prosecute.

Shame on them.
Putting aside for the moment questions about the wisdom, morality, legality, etc. of it all, what self-interest(s) do you think Bush and Cheney were out to serve, if any? Do you think they did not sincerely believe that they were serving the nation's best interests, that is defending it against those who would do it as great harm as they could manage, by pursuing the course they pursued?
4.25.2009 12:26am
jukeboxgrad (mail):
as:

They are strapped to a board, so of course they are under physical control.


No, they are not "under physical control," because they are free to leave. They are free to end the procedure, if they wish. They are free to drop out of SERE. Our soldiers (unless they are in our brig, or being held by an enemy as POWs) are not in "custody."
4.25.2009 12:27am
jukeboxgrad (mail):
mark:

I am also fascinated by the absolute conviction that either water boarding never works or that even if it does, there is no cost that would be worth the stain to our national honor that could justify its use ever under any circumstances.


You are raising the issue of the ticking time bomb. This can be addressed. As PC said in another thread:

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.


And I was surprised to notice that Krauthammer once made a similar proposal.
4.25.2009 12:27am
trad and anon (mail):
If James Stockdale (John McCain might actually be useful for a change here) were still alive, you could ask him about his experience in Hanoi, during which he and other prisoners had their arms tied behind their backs for long periods, which sounds a bit like "stress positions." Try doing it on your own for fun sometime. On more than one occasion I had to stand at parade rest for an extended time - it hurts, and the only thing holding me then was just my own will.

Being held (or holding yourself) in one position for a long time is indeed quite painful. Your various muscles, tendons, and ligaments are built to help you move around, not to help you stay in the exact same position for long periods of time. Even staying still in a comfortable position for long periods of time can be extremely painful; maintaining an uncomfortable position for long periods is excruciating.
4.25.2009 12:29am
PC:
Again, I see in the battery statute where consent is a defense. Please point me to the language in the torture statute which provides that consent is a defense?

Thanks again.


This purely speculation, but I'll take a stab at it. Consent was specifically left out so there wouldn't be a hole the government could drive a bus through. If a person could consent to be tortured it's not a stretch to imagine a situation where a government would coerce a person to consent (sign this form or we send you to Morocco to have your genitals sliced up). Voilà, no statutory or treaty violation.

I think jbg has it right too. If you are in the custody of the government you are not free to leave the situation (physical control is probably there to prevent more cute government games). Sure, a soldier may be strapped to a waterboard, but the soldier has the ability to stop the waterboarding. Suspects have no such ability so the torture statute applies.

IANAL, but there are many smart ones on here that can feel free to correct me on any of the above.
4.25.2009 12:36am
Just an Observer:
neurodoc,

The subject of the comment was cowardice -- which I did not raise first, the prior commenter did in reference to our incumbent President -- not bad intentions. Obama presumably has good intentions, too.

I have never found the Bush-Cheney political platform, appropriating the courage of others in the name of their own patriotic image, to be a profile in courage. In this particular case, the way they and their lawyers set up DOD, CIA and NSA subordinates with phony legal cover, was particularly despicable.

The lower ranks got whipsawed and cut off, and the primary blame was the illegal policies ordered from the top in the first place.
4.25.2009 12:37am
jukeboxgrad (mail):
moore:

nobody even imagined that using the same techniques that we use on our own troops would, years later, be considered a crime.


The idea that we used "the same techniques that we use on our own troops" is one of the Big Lies we've been told regarding torture (another big one is that torture saved LA via time travel).

It's absurd to equate the experience of a captive with the experience of a volunteer. As PC pointed out, someone who does that doesn't understand the difference between rape and voluntary intercourse. But aside from that, the newly released OLC memos indicate that what we did to our prisoners is simply not the same procedure we use at SERE. This is explained in some detail in the memos, and summarized as follows (pdf, p. 41):

the SERE waterboard experience is so so different from the subsequent Agency usage as to make it almost irrelevant


We have been told an endless series of lies, and the idea of "same techniques" is one the biggest.
4.25.2009 12:37am
trad and anon (mail):
As for SERE, I've never understood why we would assume the techniques used in anti-torture training are not torture. Waterboarding is a technique of choice in SERE precisely because it's one of the most excruciatingly painful things you can do to someone without causing permanent physical damage. Provided you stop before too long. If you keep going, they die of asphyxiation.
4.25.2009 12:38am
jukeboxgrad (mail):
jager:

My, my, what a chorus of people retroactively defining "torture" to fit their polical inclinations … It may be clear, now, that waterboarding is "torture", but only because of what amounts to an executive order defining it as such.


Waterboarding has been around for centuries, and it has been universally described as a form of torture. Claiming that waterboarding is not torture is a Bush administration innovation. So they (and you) are the ones "retroactively defining 'torture' to fit their polical inclinations."

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. We prosecuted them for doing so. Even when they used the same procedure we're using (speaking of "same techniques"). Why is it a crime when they do it, but not when we do it?
4.25.2009 12:40am
trad and anon (mail):
We called it torture when the Japanese did it.

Also when the Viet Cong did it.
4.25.2009 12:43am
PC:
We have been told an endless series of lies, and the idea of "same techniques" is one the biggest.

I would be curious to know if SERE trainers are required to have a doctor with a trach kit present during the waterboarding sessions.
4.25.2009 12:44am
Andrew J. Lazarus (mail):
Neurodoc, once you've cleaned up your pants from reading my 6:37 question, try answering it: have we ever accepted the excuse "We just want to move forward" from torturers of any nationality other than our own?
4.25.2009 1:04am
John Moore (www):
Anderson (mail):

Who knew, before this issue broke, that the internets were *teeming* with "SERE graduates


AFAIK, I'm the only SERE graduate (no quotes) on this thread. But yes, there are lots of us on the internet, since probably 100,000 people have been through the program.

If you mean to imply that I am not a SERE graduate, then say so.
4.25.2009 1:16am
John Moore (www):

you could ask him about his experience in Hanoi, during which he and other prisoners had their arms tied behind their backs for long periods, which sounds a bit like "stress positions."

And "foo" sounds a bit like "shoe."

The prisoners in Hanoi had their hands tied behind their back, and were then hoisted until all their weight was suspended from the rope tied to their hands. Hardly a mere "stress position."

They were also severely beaten, denied adequate medical care, and in general treated much more badly than we treat the detainees. More importantly, they were legitimate POWs, while the detainees cannot make that claim.
4.25.2009 1:18am
John Moore (www):
PC

We sent Binyam Mohamed to Morocco where the authorities allegedly sliced up his chest and genitals.

Finally we see a description of what sensible people would agree is torture.
4.25.2009 1:19am
John Moore (www):
Alamo (mail):

Adherence to the rule of law is the fundamental precept of our American society.

If we fail to seriously address any infringement of that precept we effectively have diminished its importance and in doing so, have run the risk of destroying the rules and order that we all have agreed to live within.



1) Prosecutorial discretion

2) Bill Clinton's perjury
4.25.2009 1:20am
John Moore (www):
PC

Sure, a soldier may be strapped to a waterboard, but the soldier has the ability to stop the waterboarding. Suspects have no such ability so the torture statute applies.

Let's see. When I was in SERE, I could be courts martialed and lose all security clearances for life by exercising that ability.

The suspect, on the other hand, merely has to tell the truth and he will be better off.

Who was it that can stop the waterboarding?
4.25.2009 1:21am
jukeboxgrad (mail):
anderson:

Anyone notice that the CIA's enthusiasm for torture seems to reduce the likelihood that it was Cheney/Libby/Addington pushing for it? Or at least, make it unclear where that fits into the timeline? Of course, if I'm overlooking something, I'm all ears.


I know you've seen Soufan's oped. He says something about "my C.I.A. colleagues who balked at the techniques." Which suggests that they were being leaned on by senior people. I think that implies "Cheney/Libby/Addington pushing for it."

Also, in the memos we find stuff like this:

On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant, elements within CIA Headquarters still believed he was withholding information … At the direction of CIA Headquarters, interrogators therefore used the waterboard one more time on Zubaydah.


Another indication that pressure was coming from above. From who, exactly? Hopefully we're going to find out. But Cheney/Libby/Addington are likely candidates. And it was all about producing phony evidence to sell the war. Recall that Zubaydah was tortured in 8/02, and 9/02 is when Cheney et al rolled out bogus claims regarding aluminum tubes. The torture of al-Libi produced false claims that were used to sell the war. All these things (bogus claims about WMD and false confessions produced via torture) were happening at around the same time.

=================
neuro:

Putting aside for the moment questions about the wisdom, morality, legality, etc. of it all, what self-interest(s) do you think Bush and Cheney were out to serve, if any?


They had an interest in going to war against Iraq. That interest pre-dated 9/11. Was that interest a "self-interest?" Considering the amount of money certain people ended up making (link, link, link, link), the answer might be yes.

Do you think they did not sincerely believe that they were serving the nation's best interests, that is defending it against those who would do it as great harm as they could manage, by pursuing the course they pursued?


The two things are not mutually exclusive. There are many activities in life where I can believe I am doing well and doing good at the same time. And often the belief is correct. If Bush thought that a certain course of action could both "[serve] the nation's best interests" and, incidentally, greatly enrich certain (ostensibly) patriotic and honorable members of his cohort, then why shouldn't he pursue that course of action? It's a very juvenile kind of binary thinking which assumes that the motivation has to be just one or the other. And to think that the profit motive must have had no influence whatsoever is excruciatingly naive. Our whole society worships money, and this cohort worships money intensely.
4.25.2009 1:26am
Relic:
Waterboarding, as practiced by, say, the Japanese, was far more intense than what KSM went through. For instance, the Japanese made no attempt to protect their subjects from harm, whereas the CIA did. The Japanese "water cure" was to hold the prisoner upside down and poor water directly onto them.
4.25.2009 1:45am
Just an Observer:
John Moore: Let's see. When I was in SERE, I could be courts martialed and lose all security clearances for life by exercising that ability.

Here is something I genuinely don't understand. As someone with firsthand experience, can you explain it?

Do most SERE trainees fail the waterboarding test -- which we are given to believe is a highly reliable technique for extracting information from our enemies -- ask the trainer to stop, and give up their secrets? If so, there must be a lot of courts martial taking place out there.

How many of the 100,000 SERE trainees have been court-martialed? A 1 percent court-marital rate would imply that the techniques are 1 percent effective; a 90 percent court-martial rate would imply they are 90 percent effective. Have there been 90,000 such courts martial? Or do you mean there have been 100,000 successful graduates?

I also recall you saying that about one SERE trainee dies annually in the interrogation training. But that flatly contradicts the facts stated in the OLC memos, which say the SERE training is safe and has only minor casualties. Can you explain this factual discrepancy?

Also, does the SERE regime routinely involve waterboarding on the scale of 183 times/month, coupled with sleep deprivation of up to 11 days?

I recall your being asked such questions before in threads here, but I don't recall that you ever answered. (I respect your service, but since you haven't been responding to others' questions, I haven't taken your comments very seriously in these conversations. Forgive me if you have answered all these questions and I have just missed your responses.)
4.25.2009 1:55am
Ohio Scrivener (mail):
Political prosecutions tend to be rather detrimental to the health of a republic:

A stark dilemma confronted Caesar. On the day he lost his imperium and command of his legions in Gaul, he would become vulnerable to any charges of illegality or corruption his enemies might wish to levy for deeds dating from his Consulship and covering all actions during his conquests. With his political enemies in control, the very best he could expect was confiscation of all property, public disgrace, and permanent banishment from Rome. It was essential to his political survival that he step directly from command into the consulship, in which he would again be protected from prosecution. But Pompey and the Senate refused to effectively grant Caesar the right to stand for the consulship in absentia.

When we stop leaving political differences for elections are start criminalizing them, we do our own republic no favors.
4.25.2009 1:58am
M. Simon (mail) (www):
they did authorize Jefferson to take action against the pirates.

It was an AUMF. And if you read the Iraq War AUMF in juxtaposition you will see that in fundamental respects they are identical.
4.25.2009 1:58am
jukeboxgrad (mail):
moore:

When I was in SERE, I could be courts martialed and lose all security clearances for life by exercising that ability [the ability to stop the waterboarding].


The Senate Armed Service Committee recently released a report called "Inquiry Into the Treatment of Detainees in U.S. Custody." From p. 21 in the pdf:

SERE school is voluntary; students are even given a special phrase they can use to immediately stop the techniques from being used against them.


For same strange reason, in your particular instance they forgot to tell you the safe word. Maybe they didn't like you.
4.25.2009 2:01am
M. Simon (mail) (www):
They had an interest in going to war against Iraq. That interest pre-dated 9/11. Was that interest a "self-interest?" Considering the amount of money certain people ended up making (link, link, link, link), the answer might be yes.

I was under the impression that the Clinton Administration nominally declared war on Iraq and the Bush Admin carried out the Congressional instructions that Clinton signed. Very clever of Bush to get Clinton to do that.

Also clever of Bush to get Clinton to institute the Haliburton services contract.
4.25.2009 2:07am
jukeboxgrad (mail):
relic:

Waterboarding, as practiced by, say, the Japanese, was far more intense than what KSM went through.


The Japanese did it a variety of different ways. But sometimes they did it just like we did it (pdf, p. 20, third bullet):

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


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

And as far as I know, they never did that to someone 183 times.
4.25.2009 2:09am
PC:
Let's see. When I was in SERE, I could be courts martialed and lose all security clearances for life by exercising that ability.

Interesting. This contradicts other things I've read. I know someone who went through SERE, but he's currently stationed in Iraq so it will be a while before I can ask him what his experience was like.

The suspect, on the other hand, merely has to tell the truth and he will be better off.

And there's the rub. What if the suspect is telling the truth, but the interrogators don't believe him? We got an innocent Canadian to falsely confess by handing him over to the Syrians where he was beaten with shredded cables. We dropped all charges against the guy we sent to Morocco that had his genitals sliced up. Then there was Khalid el-Masri who claims to have been tortured in Afghanistan (I would assume you consider sodomy to be torture) and was also innocent. He too was released.

Are you starting to see the problem with torture now?
4.25.2009 2:15am
jukeboxgrad (mail):
simon:

I was under the impression that the Clinton Administration nominally declared war on Iraq and the Bush Admin carried out the Congressional instructions that Clinton signed.


Are you talking about the Iraq Liberation Act? The Iraq Liberation Act of 1998 (link) called for support to "Iraqi democratic opposition organizations," via a limited amount of money, training and equipment. It specifically indicated we should have no military role beyond that: "Nothing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces (except as provided in section 4(a)(2)) in carrying out this Act."

So why are you implying otherwise?

Also clever of Bush to get Clinton to institute the Haliburton services contract.


It's true that Clinton did business with Halliburton before Bush did, but it was a separate contract:

In 2001, after the Bush administration came into office, the giant LOGCAP contract expired again and another competition was held. Once again, Halliburton won the contract, and it was under that arrangement that the Iraqi-oilfield analysis was done. As the record shows, Halliburton won big government contracts under the Clinton administration, and it won big government contracts under the Bush administration.


Why are you implying otherwise?

By the way, 'Clinton did X before Bush did something vaguely similar to X' is not a particularly "clever" way of defending Bush. Because any alleged bad behavior on the part of Clinton (or FDR, or Truman, or Lincoln, or anyone else) doesn't excuse Bush's bad behavior.
4.25.2009 2:22am
jukeboxgrad (mail):
Oops. A minor error in something I transcribed. Above I said this:

the SERE waterboard experience is so so different from the subsequent Agency usage as to make it almost irrelevant


The correct text is this:

the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant
4.25.2009 2:29am
John Moore (www):
Just an Observer:

Do most SERE trainees fail the waterboarding test -- which we are given to believe is a highly reliable technique for extracting information from our enemies -- ask the trainer to stop, and give up their secrets? If so, there must be a lot of courts martial taking place out there.

When I was in SERE, they didn't waterboard, so I don't know.


How many of the 100,000 SERE trainees have been court-martialed? A 1 percent court-marital rate would imply that the techniques are 1 percent effective; a 90 percent court-martial rate would imply they are 90 percent effective. Have there been 90,000 such courts martial? Or do you mean there have been 100,000 successful graduates?

Who knows. The point is the we *believed* that we would be courts martialed and lose all security clearances. I suspect that policy has changed now that they are using more effective techniques (waterboarding).


I also recall you saying that about one SERE trainee dies annually in the interrogation training. But that flatly contradicts the facts stated in the OLC memos, which say the SERE training is safe and has only minor casualties. Can you explain this factual discrepancy?

I did. Go back and look at the thread. In fact, I was attacked for citing too small a number based on the expected number of deaths for the number of people involved.

But you don't really care... you are not really asking, you are being snarky and trying to make me appear to contradict the evidence.


Also, does the SERE regime routinely involve waterboarding on the scale of 183 times/month, coupled with sleep deprivation of up to 11 days?

Duh. What do you think? Again, you are not really asking - just engaging in the typical juvenile riposte so popular here.


I recall your being asked such questions before in threads here, but I don't recall that you ever answered. (I respect your service, but since you haven't been responding to others' questions, I haven't taken your comments very seriously in these conversations. Forgive me if you have answered all these questions and I have just missed your responses.)

I don't believe one word of the above is sincere. The answer is yes, in spite of JBG's assertions (are you his sock puppet?), I answered. Go back and check. What I rarely do is respond to JBG because he is offensive and rants too much.
4.25.2009 2:50am
John Moore (www):
JBG


SERE school is voluntary; students are even given a special phrase they can use to immediately stop the techniques from being used against them.



For same strange reason, in your particular instance they forgot to tell you the safe word. Maybe they didn't like you.

Demonstrating that you are indeed an a**hole, as I suggested, you produce this nonsense.

Although you very strongly asserted that SERE started in the '80s, until I provided a cite showing it started in 1953, you still seem to be temporally confused. Or, more accurately, you are being an a**hole simulating temporal confusion while accusing me of being a liar.

There is no contradiction between your cite and my statement. If you cared about the truth, rather than making points, you'd know that. Do I have to spell it out for you?
4.25.2009 2:52am
Just an Observer:
I still can't get over neurodoc's moral defense of Cheney.

Nor do I think the former vice president is acting at all admirably today. He talks tough. But he really is hiding behind surrogates' talking-point chorus that this is just a political issue, so former high officials like him who directed this program are beyond prosecution simply because they are former high officials.

What Cheney did in 2002 was essentially this: He directed CIA officers to violate the law facially, and asked them to place their faith in OLC's legal opinion that the specified interrogation techniques were by definition not criminal acts.

If Cheney had real moral courage, he would do the same thing today he was asking of the CIA officers to do then.

Cheney would stipulate that he gave the orders, volunteer to testify about all the facts before a grand jury, never take the Fifth, and risk indictment for violation of the Torture Act or the War Crimes Act, etc.

Then, if indicted, he would rest his defense squarely on a motion to dismiss, based on the merits arguments in the OLC memos.

On the merits, if the court agreed this was not torture or other criminal abuse, Cheney would be acquitted and everyone would be vindicated.

Mr. Vice President, tell it to the judge!
4.25.2009 3:06am
jukeboxgrad (mail):
cramer:

In 2002, if you had suggested that waterboarding people that had planned 9/11 would lead to prosecutions, people would have laughed at you.


A few 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.


Emphasis added.

===================
mac:

Releasing (selectively) top secret CIA memos


Like Cheney, you're suggesting that Obama is holding back some other memos that will make Bush look good. If so, you should explain why Cheney didn't release those memos when he could have:

If there exist documents that prove that torture prevented attacks on the US, and those documents can be released without jeopardizing national security, why didn't the Bush administration release them before leaving office?


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

the increased frequency of the waterboarding (even misreported to be worse than it was).


You're citing NR. As I have pointed out (example, example), they are packed with misinformation (on lots of subjects, but especially on this subject).

Andrew has pointed you towards an article that demolishes the NR piece you cited. But I want to emphasize one particular point that is important and easy to overlook.

There were four OLC memos recently released. Three were written by Bradbury in 2005, and one was written by Bybee in 2002. The NR post you cited makes a big fuss about detailed guidelines ("a strict set of rules") that specify such things as how many sessions of waterboarding can take place in one day. Trouble is, these guidelines don't appear in Bybee's 2002 memo. In that memo, there are other guidelines that are much less detailed.

The 2005 guidelines appear to be a response to concerns raised in a 2004 report by the CIA IG. So there is no particular reason to assume that the 2005 guidelines were in place when KSM and Zubaydah were tortured in 2003 and 2002. On the contrary; what appears to have happened is that CIA IG found out what was done to KSM and Zubaydah, and raised concerns about this, and this led to tighter guidelines being developed.

Nevertheless, NR pretends that it's a known fact that KSM and Zubaydah were tortured according to the 2005 guidelines. So this is yet another example of NR (and you) peddling crap.

The prisoners in Hanoi had their hands tied behind their back, and were then hoisted until all their weight was suspended from the rope tied to their hands. Hardly a mere "stress position."


You are responding to someone who was discussing McCain. You shouldn't imply that what you describe was done to McCain, because it wasn't (or if it was, he has kept it a secret).

There is no contradiction between your cite and my statement.


This is what the Senate report said:

SERE school is voluntary; students are even given a special phrase they can use to immediately stop the techniques from being used against them.


Are you disputing any of that? If not, then there's no problem.

I suspect that policy has changed now that they are using more effective techniques (waterboarding).


From the Senate report (p. 93):

The Navy is the only service that used waterboarding in SERE training, which it ceased in November 2007.


(That writing is ambiguous, but another passage on p. 62 indicates that what "ceased" was not SERE training, but rather the use of the waterboard in SERE training.)

When I was in SERE, they didn't waterboard, so I don't know.


There are numerous reasons why SERE training in general, and your SERE training in particular, are not comparable to the torture we committed. You just mentioned one of those reasons. So I don't know why you keep pretending otherwise, and I don't know why you keep making a fuss about your SERE training.

You have a track record here of ducking fair questions (example), and of inventing your own facts (example). So you shouldn't be surprised when all your claims are seen in that light.
4.25.2009 3:23am
John Moore (www):


SERE school is voluntary; students are even given a special phrase they can use to immediately stop the techniques from being used against them.


Are you disputing any of that? If not, then there's no problem.


As I suspected, you weren't capable of doing the logic to understand why there is no contradiction. Maybe another commenter will clue you in.


So I don't know why you keep pretending otherwise, and I don't know why you keep making a fuss about your SERE training.

Because when people state facts about SERE that I know to be untrue (or not appropriate), I respond to them.
4.25.2009 3:32am
John Moore (www):

If there exist documents that prove that torture prevented attacks on the US, and those documents can be released without jeopardizing national security, why didn't the Bush administration release them before leaving office?

Probably because, unlike the Obama administration, Cheney is not willing to release information for political benefit that may help our foe. Now that The Great One has let the cat out of the bag, Cheney is publicly asking for them (although he quietly asked for them a weeks BEFORE the idiotic release of the memos, to use for research into his book).
4.25.2009 3:35am
John Moore (www):
Just a general ztatement...

I fear that the release of the torture memos, and other activities by the regime now in power, will lead to right wing anger almost as blind and irrational as the Bush Derangement Syndrome so strongly displayed by many even to this day.

This will not be good for the country, and is one more very good reasonn that Obama should have fought the release of the memos, and should not have waffled into a position that implicitly endorses prosecuting the lawyers.

The left often refers to a theory of a "cycle of violence." We are approaching that with this latest overtly political criminalization of policy disputes, and threatened persecution of officials of a former administration.
4.25.2009 3:40am
Just an Observer:
John Moore: Probably because, unlike the Obama administration, Cheney is not willing to release information for political benefit that may help our foe. Now that The Great One has let the cat out of the bag, Cheney is publicly asking for them (although he quietly asked for them a weeks BEFORE the idiotic release of the memos, to use for research into his book).

Actually, that is a very interesting insight, if your timeline is accurate.

That means that even absent the dislosure of the OLC memos, if these two memos were declassified per Cheney's request, all those embarrassing secrets would have been available to the world, verbatim -- revealed purely for Cheney's self-serving purpose. Thanks for pointing out that fact.

These are not the actions of a courageous patriot. (Remember, this is the the same cowardly leader who hung the CIA officers out to dry based on flimsy OLC memos he is afraid to trust his own hide to today.)

Mr. Vice President, tell it to the judge!
4.25.2009 3:48am
jukeboxgrad (mail):
cramer:

It would have taken far longer to repeal the laws and withdraw from the treaties than there was time available. Remember: they believed that an attack was imminent.


As of 5/10/05, Bradbury was still writing memos designed to circumvent the federal anti-torture statute. That's 1,337 days after 9/11. Was that not enough time "to repeal the laws and withdraw from the treaties?"

Quite of a number of Democrats in Congress in 2002 knew that waterboarding was on the menu


Cheney, Yoo, Bybee and Bradbury are entitled to a fair trial. Likewise for any member of Congress that condoned or enable their evil acts.

the Bush Administration would have been held accountable by the same crowd if they had failed to prevent another horrendous attack.


I see you're part of the "the same crowd" that thinks Bush's term started on 9/12/01. He did indeed fail to prevent a "horrendous attack," and there hasn't been a whole lot done to hold him accountable for that.

================
jager:

What you advocate isn't law. Its an Inquisition.


What an ironic statement, since waterboarding goes back to the Spanish Inquisition.

That the military and the FBI had further restrictions on interrogation methods is not a definition of "torture".


The FBI didn't just tell the CIA (paraphrase) 'what you're doing violates FBI standards.' The FBI told the CIA 'what you're doing is torture.' DOJ IG wrote a 438-page report on the subject (pdf). See p. 111 in Adobe Reader:

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.


And lots of other people were raising similar concerns. From the Senate report I cited above, p. 23:

Between mid-December 2002 and mid-January 2003, Navy General Counsel Alberto Mora spoke with the DoD General Counsel three times to express his concerns about interrogation techniques at GTMO, at one point telling Mr. Haynes that he thought techniques that had been authorized by the Secretary of Defense "could rise to the level of torture." On January 15, 2003, having received no word that the Secretary's authority would be withdrawn, Mr. Mora went so far as to deliver a draft memo to Mr. Haynes's office memorializing his legal concerns about the techniques. In a subsequent phone call, Mr. Mora told Mr. Haynes he would sign his memo later that day unless he heard defmitively that the use ofthe techniques was suspended. In a meeting that same day, Mr. Haynes told Mr. Mora that the Secretary would rescind the techniques. Secretary Rumsfeld signed a memo rescinding authority for the techniques on January 15, 2003.


Follow that? Mora had to essentially hold a legal gun to Rummy's head before Rummy was willing to rescind that particular torture order.

There's a lot of important material in that report, but it's being overshadowed by the OLC memos.

================
neuro:

I thought Wayne Jarvis's answer ("Obama ordered the brutal shooting of three misguided teen-aged runaways.") was pretty funny.


I think the idea came from Rush.

================
ejercito:

Would you rather that our allies in Afghanistan, Iraq, and Israel conduct the interrogations?


There are many different ways of saying 'there's someone else who does something worse than us.' But when you resort to doing so, you are demonstrating that your standards are too low.

================
seamus:

Oh, I don't know. Because no one showed any interest in prosecuting Bill Clinton for the kind of perjury that got lesser mortals sent to jail?


Since lesser mortals get sent to jail for perjury, I guess that proves Scooter Libby is something other than a lesser mortal.
4.25.2009 3:53am
jukeboxgrad (mail):
moore:

As I suspected, you weren't capable of doing the logic to understand why there is no contradiction.


This seems to be your indirect way of admitting that what you experienced in SERE 42 years ago is not congruent with the way things have been done in SERE after that time. Which is another reason to understand that your SERE experience is not particularly relevant. But you seem to not realize that, because you make reference to it repeatedly.

If there exist documents that prove that torture prevented attacks on the US, and those documents can be released without jeopardizing national security, why didn't the Bush administration release them before leaving office?


Probably because, unlike the Obama administration, Cheney is not willing to release information for political benefit that may help our foe.


I think you missed these important words in the question: "without jeopardizing national security." The material Cheney is talking about will either "help our foe," or not. If the former, then why is he asking for it to be released? If the latter, then why didn't he release it himself, when he had the power to do so?

Aside from that, feel free to explain how leaking Plame's identity did not demonstrate that Cheney was indeed "willing to release information for political benefit that may help our foe."
4.25.2009 4:24am
jukeboxgrad (mail):
moore:

I don't know why you keep making a fuss about your SERE training.


Because when people state facts about SERE that I know to be untrue (or not appropriate), I respond to them.


Let's take a moment to consider how ironic this is. An essential point about SERE is that it's voluntary, and that the trainee has the power "to immediately stop the techniques from being used against them." This is documented in the Senate report I cited. This alone makes it profoundly different from what we do to prisoners (and there are other important difference that I've documented).

Which brings us to the following exchange:

PC: "Sure, a soldier may be strapped to a waterboard, but the soldier has the ability to stop the waterboarding. Suspects have no such ability so the torture statute applies."

Moore: "Let's see. When I was in SERE, I could be courts martialed and lose all security clearances for life by exercising that ability. The suspect, on the other hand, merely has to tell the truth and he will be better off. Who was it that can stop the waterboarding?"

PC's statement is congruent with what is documented in the Senate report. Yours is not (it would be very misleading for the Senate report to call an act "voluntary" if the consequence is a court martial). Why? Who knows. Obviously there are multiple possible explanations for the discrepancy. Maybe it has something to do with the fact that you experienced SERE 42 years ago. Trouble is, that important fact is nowhere to be found in your comment, or in any of your comments in this thread. So a reader who considers your exchange with PC could easily be misled if they decide that you are more credible than he is.

You said you speak up about your SERE experience "when people state facts about SERE that [you] know to be untrue." But what PC said about SERE isn't untrue, and you don't "know" it to be untrue. All you "know" is that it doesn't mention something you remember from 42 years ago.

Also, the way you structured your comment ("who was it that can stop the waterboarding") implies that you experienced waterboarding, even though you didn't. You admit that in a later comment, but that's something a reader could easily miss.

Also, your claim ("the suspect, on the other hand, merely has to tell the truth and he will be better off") is false. We kept torturing al-Libi until he produced false confessions (and Bush et al used those false confessions to promote the war). And given that we waterboarded KSM 183 times, it's not at all clear that his situation was different.

There are many reasons why all your claims should be taken with a big grain of salt.
4.25.2009 5:21am
Jeff Walden (www):
I think Wayne Jarvis wins it with the second comment.

As a practical matter, I cannot agree with prosecuting government officials acting in good faith, and while Obama's policies are an ongoing downward spiral for the country, I do not believe he is intentionally acting to break any laws (nor do I expect he will, just as I have never expected the like from any president in my lifetime) -- it's just political questions suitable for judgment in the electoral court.

One last, in response to "Hugh Jass", who said this:


I wonder how many of the people who think that it's not necessary to investigate whether crimes occurred w/r/t torture also argued that Clinton needed to be impeached in order to uphold "the rule of law."


The Republican mistake (Democratic success?) was in failing to present the primary concern as perjury rather than immorality. The latter is grounds for voting against a politician, but only the former is grounds for impeachment and conviction. Maybe, just maybe, concentrating on the former would have been more effective; I was not paying enough attention to politics at the time to be sure.

Further note that the good faith exception I described does not provide the means for Clinton to escape the implicit censure of impeachment. His lying under oath wasn't about serving the country in good faith, it was merely self-serving falsehoods not motivated by the public good.
4.25.2009 5:46am
Jeff Walden (www):
Also, lest I be misinterpreted for not being sufficiently precise, the good-faith exception would only apply in cases where the legality of the behavior is uncertain (as in the Bush torture scenarios, where he did receive legal advice suggesting the actions taken were legal). Pulling fingernails in the ticking-time-bomb scenario and successfully preventing apocalypse admits the possibility of prosecution, but I would leave it to Congress or the appropriate parties to do the right thing and either not convict or for the President to immediately pardon the offender upon conviction. I am initially indifferent to which of these two options is the rightest one; it would require more thought and perhaps might for me have to be an as-applied distinction.
4.25.2009 6:15am
neurodoc:
Andrew J. Lazarus: Neurodoc, once you've cleaned up your pants from reading my 6:37 question, try answering it: have we ever accepted the excuse "We just want to move forward" from torturers of any nationality other than our own?
South Africa?

But the real point is that your clearly too obtuse to understand the difference between a nation dedicated to a singular genocidal mission, with millions dead the result, and harsh interrogation, even torture, of the likes of KSM. Godwin's Law is not a law of physics, like F=MA, rather it is a social observation about how debased a thread becomes when some fool pops up with a comparison to the Nazis. So, throw that crap out whenever you want, but you impress only yourself with the "logic."
4.25.2009 7:57am
neurodoc:
jukeboxgrad: I think the idea came from Rush.
Thanks, I thought it was Wayne Jarvis's own bit of drollery. Surprised to learn that you are a dittohead, though.:)
4.25.2009 8:00am
neurodoc:
Just an Observer: I still can't get over neurodoc's moral defense of Cheney.
Why don't you read and react what I actually wrote rather than what you project my thinking to be? I wasn't addressing myself to the question of "morality," I just sought to engage with the "cowardice" charge, which doesn't resonate with me.
neurodoc: Putting aside for the moment questions about the wisdom, morality, legality, etc. of it all, what self-interest(s) do you think Bush and Cheney were out to serve, if any?
4.25.2009 8:08am
Anderson (mail):
Of course, our laws do not govern the conduct of our allies in Afghanistan, Iraq, or Israel.

They do however forbid our sending prisoners where they are likely to be tortured.

... JBG, I hear ya about Cheney, but in all fairness, it may be that Tenet &his immediate deputies were the guys pushing for torture. Tenet had his "slam-dunk" to back up, and was so grateful not to be hung out to dry for 9/11 that he could well have authorized torture. I don't recall that anyone had to push the Phoenix Program on CIA.

God knows, I am the last person to defend Cheney &Addington, but I'm just looking for evidence. It's odd that the meetings in May &July 2002 where CIA presented its case for torture did not include a Cheney rep -- they were directed at NSA.
4.25.2009 8:44am
Jagermeister:
jukeboxgrad: your dropping the "borderline..." and "could rise to the level of..." qualifiers simply proves my point. The definitions were sufficiently cloudy, and the activities close enough to the line (wherever that may have been), that certainty was missing. Your seeing certainty where none existed simply identifies you as a ideologue.
4.25.2009 8:44am
Brett Bellmore:

rather it is a social observation about how debased a thread becomes when some fool pops up with a comparison to the Nazis.


Strictly speaking, I don't think Godwin's law says anything about a thread being debased. In fact, sometimes Nazi references are relevant. It's an observation, period, not a value judgment.
4.25.2009 9:25am
trad and anon (mail):
The suspect, on the other hand, merely has to tell the truth and he will be better off.

This is not remotely accurate. I suppose it would work if the interrogator is looking for a specific, easily verifiable piece of information like a computer password, and nothing more. Back in reality, however, the interrogator will want things like a detailed description of the supposed conspiracy and the names of everyone involved. You can't just check and see if someone has accurately described the details of a conspiracy to commit acts of terrorism.

Even if the person being tortured can convince the interrogator that he's telling the truth, there's no way he can convince the interrogator that he's telling everything he knows. If the interrogator thinks the person he's torturing knows more than he's revealing, the torture will continue whether the interrogator is right or not.

And good luck getting the torture to stop by truthfully telling the interrogator that you're completely innocent.
4.25.2009 9:27am
Mark in Texas (mail):
The troops are volunteers. They volunteer to be troops, and they are free to leave SERE. If someone is a volunteer (that is, providing "consent") they are not in your "custody or physical control."

That wasn't the way it worked when I was in the Army a long time ago at the tail end of the Vietnam War. Back then they had SEE that everybody went through as part of basic training. It was not optional and nobody was free to leave. This was also back when there was a draft so many of the people involved had not volunteered at all except in the sense that they had not evaded the draft with a student deferment or a note from their doctor documenting a history of bed wetting.

There was no water boarding that I saw but they did ask a bunch of us if anybody was claustrophobic. As I said, this was back when they had the draft so the mental acuity of some of my fellow trainees was not so great. Somebody raised his hand. He was grabbed and stuffed into a metal wall locker which was then chained shut. The trainers beat on the metal locker with tree branches for a while and then rolled the locker into a grave sized hole and started shoveling dirt in on it. When they pulled him out he was crying hysterically and had peed himself. He answered all their questions, including all the the questions that they had told us not to answer in the lectures beforehand.

I was impressed a) that somebody had been stupid enough to raise their hand and b) at how thoroughly they had broken this guy. Maybe he wasn't smart enough to remember his magic word. Maybe only officers get a magic word.

Questions for the lawyers: Do you think that procedure caused the individual mental pain? Was he under the custody of the individuals who had locked him in the wall locker?

Most of the rest of the night was spent in the evasion part running and hiding through the woods trying not to be captured by people shooting blanks at us and trying not to set off any of the artillery simulator booby traps.
4.25.2009 9:27am
Richard Aubrey (mail):
When I was in Infantry AIT, we had an evasion problem which ended up with some not simulated bad treatment. A guy in my squad had a 312 field phone's generator electrodes hooked to his earlobes.
He'd been physically captured, was being physically restrained, and was a draftee.
We didn't think of that as torture. We thought of it as hard luck.

Howsomever, the demonstration that this is all political revenge is that nobody has said a word about prosecuting Clinton admin folks for ex rendition. Those guys aren't cashing in their retirement funds for attorneys.
Which, as I say, is the objective.

Now, given the dynamics of the partisans on this board, I fully expect somebody to say stoutly, "If they can prove....BS). They don't mean it and they aren't going to call up anybody with an ounce of juice to suggest it be done. They know it won't happen, no matter how they pretend.

Pull the other one, guys.
4.25.2009 9:45am
Anderson (mail):
nobody has said a word about prosecuting Clinton admin folks for ex rendition.

Google will reveal the difference between Clinton (rendering indicted suspects to nations for trial) and Bush (rendering unindicted suspects to nations for torture).

In fact, sometimes Nazi references are relevant.

True. For instance, when Gestapo methods are emulated by the United States.

Anyone who sets out to copy the Nazis can invoke Godwin's Law as a shield.
4.25.2009 10:03am
Tom S (mail):
I believe those who use field telephones as instruments of torture hook the electrodes up well south of the earlobes (if you know what I mean...) I 'll bet your unfortunate comrade-in-arms didn't have it done to him multiple times over a span of days or weeks, during which time he was subjected to stress positions and sleep deprivation and the like. Am I wrong?
4.25.2009 10:29am
Moneyrunner43 (www):
I left this board at midnight last night and this morning find out that the lawyers are still at it. Give the ambulance chasing creepos their due; they are as vicious as wolverines when they have a victim in sight. Can we organize them into a squad and convince them that the jihadists are about to screw them out of a contingency fee on a class action suit? Even more fearful than the Amazon battalions during the right phase of the moon.

Congrats to Ohio Scrivener for bringing up Caesar’s dilemma. One of the reasons people cling to power in third world countries is the knowledge that the next “president for life” will jail, imprison or kill the previous “president for life.” As David Kopel cleverly points out, no one can go through life without being accused of breaking some law. He does not even have to be found guilty, the process of defending yourself will strip you of all you have, enriching the lawyers in the process.

Come to think of it, enriching the lawyers may be one of the points. It’s a feature, not a bug in the view of the legal profession.

And Andrew Lazarus, my friend –and you are my friend – I was simply reflecting the opinion of your fellow conspirator A.S. who states, and I quote:

“Please point me to the language in the torture statute which provides that consent is a defense?”

At which point I deferred to the wisdom of the legal eagles on this thread and concluded that the troops who had been water boarded had a cause of action. Since reading comprehension is not your strong suit, care to let us know what is? To quote you: “What an idiot”

Best,
Moneyrunner
4.25.2009 10:34am
ed (mail) (www):
Hmmm.

President Obama ordered the death of unnamed individuals in Pakistan by hellfire missile fired from Predator drones.

We are not at war with Pakistan.

Thus this is a case of murder.
4.25.2009 10:35am
Desiderius:
"Anyone who sets out to copy the Nazis can invoke Godwin's Law as a shield."

You don't say.
4.25.2009 10:38am
ed (mail) (www):
Hmmm.

@ Anderson

"Google will reveal the difference between Clinton (rendering indicted suspects to nations for trial) and Bush (rendering unindicted suspects to nations for torture). "

Indicted? Really? In what court? Military tribunals were not organized until -after- Bush took office. Renditioned terrorists were not tried or indicted in criminal courts. So how does that work?

Isn't the entire point of extraordinary rendition is that it is extra-legal?

But hey if you want to list a link to this "Google will reveal the difference between Clinton (rendering indicted suspects to nations for trial)" then please do.

Because frankly I think you're pulling this out of your hind end.
4.25.2009 10:41am
Michael Ejercito (mail) (www):

They do however forbid our sending prisoners where they are likely to be tortured.


So if American troops capture terrorists on Afghan soil, they might be forbidden by law (instead of just their commander) to turn over the terrorist to the local allies?
4.25.2009 10:49am
Moneyrunner43 (www):
Tom S.,
Are you having flashbacks to Viet Nam where you served with John Kerry, spent Christmas in Cambodia, and acted like Genghis Khan? That was the phone to the b***s war. Keep up.
4.25.2009 10:51am
RPT (mail):
Cheney is now hiding behind his daughter. "Torture is ok because my dad says so". That is pretty low.
4.25.2009 10:58am
Moneyrunner43 (www):
Does anyone else notice that Liberals have such high regard for the baby killing, mother raping torture obsessed American serviceman? And all this time I thought they supported the troops. They loved the troops. They only wanted the troops to come home safe and sound….

So they can be watched for anti-government activity. Because they are all just one step away from becoming TIMOTHY MCVEIGH!!!!!!!!
4.25.2009 11:00am
Richard Aubrey (mail):
Tom S. So there's a line, huh? And, I expect, that line is drawn where convenient. I'm surprised. Wow. Fell off my chair.
Should an operative do even that, even that, while a republican was president, you'd howl about torture.
You can do better than that, Tom S.
Point is, my squad mate was not alone. Lots of guys, cumulatively, had that happen to them over those years in the AIT programs around the country.
Hard luck. Nobody, including their parents, seemed to think it was "torture". Of course, nobody at the time had thought to use it as a tool of vicious and dishonest partisanship, either.
Emphasis on dishonest.
And somebody is trying to tell me that none of the Clinton renditionees were treated badly.
Jeez. You guys just can't stop yourselves.
4.25.2009 11:04am
bbbeard (mail):
Well, they got Capone on tax evasion, so that seems like a good place to start. I know, I know, it's a stretch, but maybe an enterprising journalist could look into it.

It seems to me that a colorable argument can be made that violations of the Hatch Act are taking place. To take just the most recent example, Janet Napolitano is implicitly threatening veterans with 'domestic terrorist' status if they attempt to participate in "extreme right wing political activity" like voicing their opinions on immigration and abortion.

It seems to me that the Porkulus bill is prima facie evidence of corrupt practices.

It seems to me that a case can be made that the Obama administration is engaging in an illegal conspiracy to deny Americans their right to privacy, by forcing their doctors to turn over medical records to the federal government.

Need more? One word: RICO.

Great flame bait, Dave!
BBB
4.25.2009 11:07am
Andrew J. Lazarus (mail):
Neurodoc: You want South Africa as an example? Officials who had committed torture (murder, etc.) for the apartheid governments were pardoned only if they went before the Truth and Reconciliation Commission and confessed. No confession, no amnesty. I could support this.

Incidentally, those of you citing Israel as a torture state are behind the times. The Israeli Supreme Court noticed that Israel was a signatory to ICAT, GC, etc. and decided that the classified forms of "moderate physical pressure" used by the security services qualified as torture and should not be permitted.
4.25.2009 11:12am
byomtov (mail):
I have a question for Kopel, and others who think prosecutions are not justified.

What, if any, mistreatment of detainees in the process of interrogation would justify prosecution. Anything?
4.25.2009 11:37am
TM Lutas (mail) (www):
I would suggest that the Obama administration is either already or will be by the time it leaves office be guilty of war crimes. It is a war crime to take a soldier and put him through the civilian court system if he is captured while levying war against the USA. This is, so far as I know, current administration policy.
4.25.2009 11:40am
Moneyrunner43 (www):
Byomtov,

You have the torturing Right-Wing Death Squads [tm] there. Let's begin with a caterpillar in the cell.

NAZI!
4.25.2009 11:43am
Moneyrunner43 (www):
TM,

It is a war crime to take a soldier and put him through the civilian court system if he is captured while levying war against the USA.


Great point. What does the Geneva Convention say about that?

This is a blog which has a very, very high regard for the law, no matter where it leads.
4.25.2009 11:47am
rosetta's stones:

Andrew J. Lazarus :
...have we ever accepted the excuse "We just want to move forward" from torturers of any nationality other than our own?


I'd say that's the answer that the US gives most often to other nations' actions, in effect if not in fact.

It also seems to be the Obama/Holder answer, as they both appear to be explicitly stating that this is all a "policy" disagreement.

I suspect Mr. Holder was thoroughly queried on these matters, long before his nomination became public. I was just a tad suspicious that the AG nomination was brought into the spotlight so quickly and with such luminescence, only days after the election (yes it is an important position, but still...).

This was the likely reason... that the congresscritters wanted to ensure that THEY remained clear from any potential luminescence. The Rich pardon gave assurance of Holder's bona fides, of his malleable principles, biased toward political practicality.

Not that I disagree with Obama's/Holder's decision... I don't. But the rabid partisans will need to check with them, and their Congressional reps, if they insist on pursuing rabidity, because it appears Holder and Obama have joined the Fourth Reich.
4.25.2009 11:54am
Just an Observer:
neurodoc: Why don't you read and react what I actually wrote rather than what you project my thinking to be? I wasn't addressing myself to the question of "morality," I just sought to engage with the "cowardice" charge, which doesn't resonate with me.

I did react to your engagement on the cowardice charge. Your only excuse for Cheney was that he is not a coward because he was well-intentioned. I and others refuted that as an utter non sequitur. And "morality" in this sense is unavoidable, because we are talking about moral courage rather than physical bravery.

But I continue to marvel that anyone finds Cheney not be to a coward for his role in this. That is an accurate term to describe any leader or commander who gives his subordinates illegal orders, then runs aways from sharing their risk. (Rumsfeld provides another example of such cowardice, in his case within the DOD chain of command.)

Cheney is now hiding behind the surrogate skirts of Sean Hannity and Karl Rove (and various other word warriors on cable, talk radio or blogs such as this) who repeatedly argue that Cheney and other senior leaders should be immune from prosecution simply because they are former high officials making "policy."

A leader with moral courage would stand up and offer himself as a test case for the shoddy OLC opinions -- the opinions that were the only defense offered to the soldiers, CIA officers, and other subordinates who followed the orders that put them in jeopardy.

(I notice that you have not engaged that argument, BTW. But that is of little consequence. This is not really about you, but about "leaders" such as Cheney.)

Mr. Vice President, tell it to the judge!
4.25.2009 12:40pm
neurodoc:
Just an Observer, how exactly have Bush and Cheney protected themselves against prosecution for whatever you imagine they might be prosecuted for? They took special steps to create such protection for themselves? And you would have them step forward and say to the Attorney General something like, "Go ahead and charge me with a crime and we will put it to a jury."? If that is how you think they would prove themselves other than "moral cowards," please discuss what crimes the AG should charge them with.

You may disapprove of what happened on their watch, but I expect they sincerely believe they were serving their country's interests when their country faced grave threats, and I would like to know what in particular may be seen as evidence of "cowardice," moral, physical, or whatever kind you like. (The fact that neither Bush, nor Cheney can lead by example when it comes to their own avoidance of military service is another matter. Rumsfeld served, but there are other reasons to see him in an unfavorable light, perhaps a very unfavorable one.)
4.25.2009 1:07pm
Relic:
@juke

Sorry for the much delayed answer, but the difference is that we:
1. Took precautions to ensure that the person being water boarded would not be harmed.
2. Had doctors on hand in case the procedure went wrong somehow
4.25.2009 1:11pm
Andrew J. Lazarus (mail):
Neurodoc, you continue to miss the point. German, Soviet, Cambodian, Iranian, and Japanese officials also thought they were facing grave threats. What graver threat could there be, reaching back historically, than women allied with Satan himself? You seem to be under the impression that our leaders order or condone torture out of sincere alarm, while all the other countries' leaders (esp. our enemies') are just a bunch of sadistic sickos. That just isn't true. They operated from the same patriotic motives, mutatis mutandis. That's one reason the ICAT states that torture is not excusable for any reason "whatsoever"; without a bright-line rule, a suitable "emergency" will always appear—or be manufactured.
4.25.2009 1:29pm
jukeboxgrad (mail):
relic:

the difference is that we: 1. Took precautions to ensure that the person being water boarded would not be harmed.


I assume you mean physical harm. Please point me toward the part of the statute that makes an exception for torture if the torturer (allegedly) "took precautions to ensure that the person being [tortured] would not be [physically] harmed."

Aside from that, I think you are making reference to "precautions" that are described in the 2005 Bradbury memos. The 2002 Bybee memo says almost nothing about "precautions." There are multiple indications that the precautions appearing in the Bradbury memos were created after-the-fact, as a reaction to medical emergencies that had happened, and were noted in the 2004 IG report.

Also, you are pointing to a statement by the torturer claiming he tried to torture carefully. Why should that statement be considered credible, in the absence of any corroboration? Why should those statements be considered more credible than the claim in the memos that implies time travel?

Had doctors on hand in case the procedure went wrong somehow


Please point me toward the part of the statute that makes an exception for torture if the torturer gets assistance from doctors. The Japanese also had lots of doctors who didn't mind participating in torture.

But if we really did try hard to torture carefully, that's something the jury should take into account.

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

I hear ya about Cheney, but in all fairness, it may be that Tenet &his immediate deputies were the guys pushing for torture.


Fair enough. Good point. Was it Colonel Mustard or Professor Plum? We don't know for sure, yet. Maybe both. I think Horton got it right, in the article you cited: "Straight to the Top - The torture trail starts and ends in the White House."

=================
neuro:

Surprised to learn that you are a dittohead, though.:)


Good point. I'm surprised too. It's a painful sacrifice, but I do it for my country.

=================
jeff:

I think Wayne Jarvis wins it with the second comment.


I think Wayne Jarvis should not be stealing from Rush without giving credit (I'm using that word loosely).

I cannot agree with prosecuting government officials acting in good faith


Assuming, arguendo, that I commit war crimes for the purpose of protecting my country, does that mean I was "acting in good faith?" And is that a valid war crimes defense?

as in the Bush torture scenarios, where he did receive legal advice suggesting the actions taken were legal


Criminals seeking the right kind of "legal advice" can usually find it, if they know where to look.

And feel free to explain how any person acting in good faith could see a meaningful difference between our waterboarding procedure and the procedure the Japanese used which we prosecuted as a war crime.

=================
trad:

Even if the person being tortured can convince the interrogator that he's telling the truth, there's no way he can convince the interrogator that he's telling everything he knows. If the interrogator thinks the person he's torturing knows more than he's revealing, the torture will continue whether the interrogator is right or not.


Exactly. And it's hard to think of any other way to explain the fact that we waterboarded KSM 183 times.

In the instance of al-Libi (link, link), the torture stopped when he gave us the false confessions we were looking for. And then Bush used those false confessions to help sell the war. So, as always in history, one of the key reasons for torture is to produce false confessions that have political utility.

=================
money:

At which point I deferred to the wisdom of the legal eagles on this thread and concluded that the troops who had been water boarded had a cause of action.


I guess you need to review the meaning of the word "custody." Hint: it's in the statute. Another hint: it's also in the dictionary.

Also, please feel free to ignore the part of the statute which indicates that it applies only to acts committed outside the US.

Also, feel free to ignore the OLC memo that says "the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant."

Since reading comprehension is not your strong suit, care to let us know what is?


No comment.

Does anyone else notice that Liberals have such high regard for the baby killing, mother raping torture obsessed American serviceman?


The GOP has such "high regard" for the troops that they want to blame the troops for policies that were set at the top. As Taguba said: "I believe, even today, that those civilian and military leaders responsible should be held accountable."

Are you having flashbacks to Viet Nam where you served with John Kerry, spent Christmas in Cambodia,


Did you know that O'Neil said "I was never in Cambodia," even though he personally told Nixon "I was in Cambodia" (video)? Funny how the words "in Cambodia" supposedly mean something different when said by different people.

=================
ejercito:

So if American troops capture terrorists on Afghan soil, they might be forbidden by law (instead of just their commander) to turn over the terrorist to the local allies?


To the extent that our allies are torturers, we need to do a better job of choosing allies.

=================
bbbeard:

It seems to me that a case can be made that the Obama administration is engaging in an illegal conspiracy to deny Americans their right to privacy, by forcing their doctors to turn over medical records to the federal government.


It seems to me that a case can be made that you're completely full of shit. Please show your evidence that someone is "forcing their doctors to turn over medical records to the federal government."

By the way, aren't you worried about the FEMA camps?

=================
byomtov:

I have a question for Kopel, and others who think prosecutions are not justified. What, if any, mistreatment of detainees in the process of interrogation would justify prosecution. Anything?


In the eyes of the GOP, the only possible way to mistreat the detainees would be to raise their taxes. That would be a case of government abuse of power. Anything else, not really.
4.25.2009 1:29pm
jukeboxgrad (mail):
jager:

your dropping the "borderline..." and "could rise to the level of..." qualifiers simply proves my point. The definitions were sufficiently cloudy, and the activities close enough to the line (wherever that may have been), that certainty was missing. Your seeing certainty where none existed simply identifies you as a ideologue.


What we did was "close enough to the line … that certainty was missing?" Really? Are you certain? Then why did Bush et al repeatedly tell us, with "certainty," that we hadn't crossed the line? Consider the "ideologue" who said this (9/6/06):

I want to be absolutely clear with our people, and the world: The United States does not torture. It's against our laws, and it's against our values. I have not authorized it -- and I will not authorize it.


And this (11/29/05):

The United States of America does not torture. And that's important for people around the world to understand.


And this (12/15/05):

this government does not torture … we adhere to the international convention of torture, whether it be here at home or abroad.


And this (10/17/06):

As I've said before, the United States does not torture. It's against our laws and it's against our values.


And this (9/6/06):

I've said to the people that we don't torture, and we don't.


And then there's this from Gonzales (7/7/04):

The President has stated that this Administration does not condone torture. If anyone engages in such conduct, he or she will be held accountable.


Sounds like Bush was "seeing certainty where none existed." Thanks for letting us know that this "identifies [Bush] as a ideologue."

Now let's consider someone else who made a statement with "certainty," i.e., with no qualifiers:

We tortured [Mohammed al-]Qahtani … His treatment met the legal definition of torture. And that's why I did not refer the case [for prosecution]


Are you going to claim that Crawford is some kind of an "ideologue?" If so, I wonder what kind. Crawford served as General Counsel of the Army (under Reagan) and Inspector General of the Department of Defense (under Bush I). Bush I appointed her "to the nation's highest military court in 1991 for a fifteen year term and [she] later served as its chief judge from 1999 - 2004." Then under Bush II she was selected to be in charge of detainee trials. So if she's some kind of an "ideologue," it's most likely that she's the opposite kind than the kind you have in mind when you use that word.

There are striking parallels between Bush's behavior regarding torture and regarding WMD. In both cases, there were many expert, trustworthy voices telling him he was wrong, or at least expressing doubts about his direction. And of course he ignored those voices. But not just that: he also repeatedly made public statements denying the existence of those voices. Bush et al repeatedly expressed "absolute certainty" regarding WMD (see also here), even though the underlying intel was far from absolutely certain. Likewise, with torture, he repeatedly expressed certainty that we weren't torturing, even though expert, trustworthy voices were warning him that what we were doing was (at best) "borderline torture" or "could rise to the level of torture," or "could be construed as torture" (pdf).

This is what an honest, courageous leader would have said regarding WMD: 'we're not sure, but we have to invade anyway.' Instead, Bush expressed certainty. And this is what an honest, courageous leader would have said regarding torture: 'what we're doing is borderline torture, at best, but we have to do it anyway.' But the Bush maladministration was neither honest nor courageous.

By the way, if you're still claiming we didn't torture, feel free to explain why we prosecuted the Japanese for torture when they used a procedure essentially the same as ours. Even though, as far as we know, they never did it 183 times to the same person.
4.25.2009 1:30pm
Tom S (mail):
Aubrey:

When the French tortured Algerians to attempt to get information on where the FLN was hiding, they hooked the electrodes to their testicles (or breasts if women), and cranked until they got information. Are you telling me that your fellow soldier was subjected to that? Would you dispute that there is an objective difference in pain and damage caused? Were your fellow-soldiers subjected to electric shocks repeatedly, or just once to see what it was like? Try answering the question; and if your are too obtuse to claim there is no difference between one shock to the earlobe and multiple shocks to the testicles, then you are in no position to comment further.
4.25.2009 1:37pm
Mark in Texas (mail):
To return to the original post question:

Which, if any, acts of the First 100 Days of the Obama administration might be prosecuted?

I suggest the Ronny Earl standard which is "Who knows? Who cares?"

Just keep bringing them before grand juries until eventually one of them comes back with an indictment. You can even try to withdraw the charges the morning that the case comes to court if you know that your case is particularly flimsy. The point is to harass your political enemies, make them spend time and money on court cases and if you get lucky damage or destroy them politically.
4.25.2009 1:37pm
Just an Observer:
neurodoc: how exactly have Bush and Cheney protected themselves against prosecution for whatever you imagine they might be prosecuted for? They took special steps to create such protection for themselves? And you would have them step forward and say to the Attorney General something like, "Go ahead and charge me with a crime and we will put it to a jury."? If that is how you think they would prove themselves other than "moral cowards," please discuss what crimes the AG should charge them with.

I have yet to see either of them step forward, after giving the orders for the Code Red, to step forward and take real responsibility for it. That is, responsibility with real consequences attached.

Do you really think these guys have nothing to do with the smarmy Karl Rove talking-point campaign about how all this is just "criminalizing policy differences" so we should bury it?

To put a stop to this, Cheney can go on Meet the Press and say essentially what your suggest, and invite open prosecution on the merits.

It really wouldn't be decided by a jury in the long run, but by judges, because once the leaders testify that they gave the orders, the facts are not in dispute. The question is a legal one -- whether the interrogation ordered comprised torture and other war crimes under the law. (The only defense the top leaders offered to their subordinates was the flawed OLC opinions to the contrary. Let the top-level leaders rely on precisely that same defense.)

As for what the charges would be, that is really no problem. Torture is illegal. It also is a war crime. (Just as giving orders to commit murder makes one culpable of murder, giving orders to commit torture is also illegal.) Conspiracy to commit the underlying offenses are obvious additional counts.

All that is at issue here is the validity of the OLC opinions, and their specious legal arguments that the actions ordered did not comprise the elements of torture under the law. All that is needed is a test case to get that question decided by the courts. And all that needs is an upstanding defendant.

(Realistically, even if Cheney did this and was convicted, there is a near-certainty that Obama would pardon him. But the "courageous" old man could at least make the gesture.)

Mr. Vice President, tell it to the judge!
4.25.2009 1:38pm
byomtov (mail):
And it's hard to think of any other way to explain the fact that we waterboarded KSM 183 times.

It's hard only if you believe that the waterboardings were really an attempt to get information. I find that proposition incredible.
4.25.2009 1:51pm
rosetta's stones:

Just an Observer:
Cheney is now hiding behind the surrogate skirts of Sean Hannity and Karl Rove (and various other word warriors on cable, talk radio or blogs such as this) who repeatedly argue that Cheney and other senior leaders should be immune from prosecution simply because they are former high officials making "policy."


JAO,

Again, it appears Mr. Obama and Mr. Holder have donned those surrogate skirts you mention, along with their fellow reichministers Hannity and Rove.
4.25.2009 1:52pm
Richard Aubrey (mail):
Tom S.
As I said, the line is drawn as convenient. My buddy in this case busted the restraints and went out through the wall of the building. He'd only had five minutes or so.
The rest of the guys caught over the years in the AIT classes were probably not so lucky. So I heard.
Anyway, I am absolutely convinced that you would consider this--even one incident--torture most foul if it, instead of waterboarding, were the process. And, further, would ignore it if it happens under Obama.
The tenor of this discussion, especially shortchanging the Clinton offenses of ex-rend, make it clear this is a matter of political revenge with torture merely the tool.
4.25.2009 1:56pm
Anderson (mail):
Those interested in the rendition program under Clinton, with its abuses, and the ramping-up of those abuses under Bush, should see Jane Mayer's "Outsourcing Torture."

As for Pakistan and drone attacks, I am worried about blowback as a matter of policy; but legally, Pakistan can cry me a river. It *claims* sovereignty over the NW Province, but it doesn't *exercise* that sovereignty. The NW Province is, de facto, a failed state, and if it's harboring terrorists or launching attacks into Afghanistan, then if Pakistan won't do anything about it, we can.

(Logically, we could declare war on Pakistan for its condoning those attacks, but there are obvious policy reasons for not doing so.)
4.25.2009 2:00pm
PC:
It's hard only if you believe that the waterboardings were really an attempt to get information.

The purpose of torture is torture.
4.25.2009 2:17pm
Just an Observer:
neurodoc,

p.s. Please let go of the "good intentions" dodge. There is no "good intentions" exception to the Torture Act or the War Crimes Act.

And again, good intentions have nothing to do with moral cowardice. I will stipulate that Cheney thought he had "good intentions."
4.25.2009 2:17pm
Richard Aubrey (mail):
Anderson
I agree wrt NWFP.
However, would those criteria apply to Somalia? Other states?
Pakistan is in a tough spot, politically. Either they claim control in which case they are condoning, or the admit no control, in which case they have no beef. Which they can't do for domestic political reasons.
4.25.2009 2:19pm
John Moore (www):
JBG...

How amusing. First you called me a liar for claiming to have attended SERE school in 1967. Then you called me a liar for claiming that the SERE trainees were not free to end the interrogation without severe consequences.

Now that a couple of my fellow veterans have turned up and validate my claims, you are reduced to saying they are irrelevant.

Why should anyone pay attention to your long rants?

And then, just to sweeten the pot, you write (re Cheney):
Aside from that, feel free to explain how leaking Plame's identity did not demonstrate that Cheney was indeed "willing to release information for political benefit that may help our foe."
4.25.2009 2:19pm
EvilDave (mail):
If, in the Age of Obama, disagreement with him is the highest form of Racism, I cannot even imagine how un-PC it would be to arrest and try him.
4.25.2009 2:22pm
John Moore (www):
Anderson (writes):


As for Pakistan and drone attacks, I am worried about blowback as a matter of policy; but legally, Pakistan can cry me a river. It *claims* sovereignty over the NW Province, but it doesn't *exercise* that sovereignty. The NW Province is, de facto, a failed state, and if it's harboring terrorists or launching attacks into Afghanistan, then if Pakistan won't do anything about it, we can.


Wait a minute, all this blabbering about prosecuting Bushies is about de jure status, not de factor. No you're claiming that even though Obama is attacking a country that is legally sovereign, it doesn't matter because it is, de facto, a failed state?

Loving the hypocrisy.
4.25.2009 2:23pm
Richard Aubrey (mail):
John Moore.
I respect you, except for how long it took you to figure out jbg. Still, took me a while, too.
4.25.2009 2:25pm
John Moore (www):
This is a gem - both about Obama's duplicity in this issue and the bias of one of the favorite cite sources of the left:

President Obama’s national intelligence director told colleagues in a private memo last week that the harsh interrogation techniques banned by the White House did produce significant information that helped the nation in its struggle with terrorists.

“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.

Baker caught an intriguing bit of redaction by the Obama administration:

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.
4.25.2009 2:27pm
PC:
I cannot even imagine how un-PC it would be to arrest and try him.

If Obama commits a high crime or misdemeanor I won't mind at all, so you have my approval.
4.25.2009 2:27pm
ArthurKirkland:
Perhaps the reason for the "no prosecution" emanations from the Obama administration is that they are focused on the proper objective -- disinclining recurrence -- and believe that disclosure might suffice. If disclosure of the evidence -- the deaths from beatings, the torture, the abuse, the decision-making and its consequences, the concealment of evidence -- is adequate to that task, I would share a willingness to stop there.

Those whose sense of justice precipitates calls for prosecutions should consider that the wrongdoers would not skate, even without prosecutions.

They have been discredited, personally and professionally. They obviously feel strongly about ideology, and have become disabling drags on the ideology they cherish.

Some may be disbarred, fired or pressed to resign. They may be required to testify under oath about their conduct and those of their friends and former colleagues. Some will rat on friends they considered friends and colleagues, others will be ratted upon by people they considered friends and colleagues.

They must wonder about the extent, timing and consequences of additional disclosurs. Some might face civil claims.

Any who genuinely believe in a judgment day must ponder the prospects of a just and comprehensive assessment of their responsibility for the sufferings of the victims -- those killed, maimed, tortured, orphaned, widowed, displaced -- of their decisions and conduct.

Disclosure could accomplish much, perhaps enough. Let's try it.
4.25.2009 2:30pm
Moneyrunner43 (www):
TM Lutas comments:

I would suggest that the Obama administration is either already or will be by the time it leaves office be guilty of war crimes. It is a war crime to take a soldier and put him through the civilian court system if he is captured while levying war against the USA. This is, so far as I know, current administration policy.
Why is everyone ignoring this?

Obama must go on trial for war crimes simply to settle the question of the status of the people we have captured. His personal issues are irrelevant and totally subordinate to having the courts answer this question which has been the single biggest legal question following 9/11.

Let’s get an indictment now! Where are the legal beagles when you really need them? I want to see him do the perp walk. He will look buff in prison garb.
4.25.2009 2:35pm
Moneyrunner43 (www):
ArthurKirkland:

I totally agree. That is why Obama must be brought up on charges NOW! Perhaps we can a do a "catch and release" with him. I would not want him to go to prison, just eternal disgrace.
4.25.2009 2:39pm
rosetta's stones:

ArthurKirkland:
"Disclosure could accomplish much, perhaps enough. Let's try it."


Not a chance, Art. Like evil Cheney, Reichfuhrer Obama and the congresscritters in the Reichstag stand as a stone wall against disclosure. What makes you think your wishes should matter to them? You're just simple volke, and they know best for you. Be happy.

I'd go for it, though. Let's get into it, right out in the open, in front of Gaia and tv cameras and everybody. I'd love to see KSM give testimony.
4.25.2009 2:49pm
John Moore (www):
Here's a great chance for Republicans to start their revenge (which hopefully they won't do, unlike the Bush haters):

Legal experts say the SEC could go after federal officials for aiding and abetting if they did in fact tell [Bank of America CEO Ken] Lewis to keep mum on Merrill’s mounting losses, but that it is the bank’s obligation to inform shareholders of decisions that could materially affect the firm’s fortunes.

Lewis said he was instructed to not make a public disclosure about potential government financing. When asked where that instruction came from, Lewis responded: “Paulson.”


Of course, the government could argue that such secrecy was important to the economy, and thus justified. But hey, that wouldn't fly here, since it's against the law.
4.25.2009 2:54pm
Moneyrunner43 (www):
Richard Aubrey &John Moore,

I cannot imagine anyone spending one seocnd of this life loger than it takes to scrill past KBG's rants.

He's like that streetcorner preacher I saw this week. Just turn away and keep walking.
4.25.2009 2:56pm
Just an Observer:
ArthruKirkland: Those whose sense of justice precipitates calls for prosecutions should consider that the wrongdoers would not skate, even without prosecutions.

I do take that into consideration. I won't require seeing Dick Cheney actually behind bars to feel a sense of closure. (Note that I think pardons are a thinkable outcome, for example.)

But the catharsis of disclosure you describe has not really happened yet, and there is much we still don't know. Making the miscreants endure a couple of weeks of chatter on cable TV is hardly sufficient. Heck, this barely registers above the chatter over the Miss USA pageant.

What cannot be allowed to happen at this point is nothing.

The historical precedent that serious laws were broken, without accountability, and that lawbreaking was sanctioned by corruption of the very machinery of justice at OLC, cannot be allowed to stand.
4.25.2009 3:01pm
Just an Observer:
John Moore: Here's a great chance for Republicans to start their revenge ...
"Paulson"


Uh, Paulson was the Republican Secretary of the Treasury under George W. Bush. (It was in all the better papers.)
4.25.2009 3:11pm
MarkField (mail):

Here's a great chance for Republicans to start their revenge (which hopefully they won't do, unlike the Bush haters):


Legal experts say the SEC could go after federal officials for aiding and abetting if they did in fact tell [Bank of America CEO Ken] Lewis to keep mum on Merrill’s mounting losses, but that it is the bank’s obligation to inform shareholders of decisions that could materially affect the firm’s fortunes.

Lewis said he was instructed to not make a public disclosure about potential government financing. When asked where that instruction came from, Lewis responded: “Paulson.”


As usual, you seem to be confused about the facts. The Republicans are hardly likely to insist on prosecution of the Republican Treasury Secretary, nor would it be much "revenge" if they did.
4.25.2009 3:14pm
Anderson (mail):
However, would those criteria apply to Somalia? Other states?

I think so, tho the policy issue is difficult, as I said. If Somalia controls its territory, then it needs to either rein in its pirates or admit that it's harboring them, which sounds like war to me. If it doesn't control its territory, then it's in no position to tell the rest of the world to stay out. In a bumper sticker: "Sovereignty - Use It or Lose It."

Wait a minute, all this blabbering about prosecuting Bushies is about de jure status, not de facto. No you're claiming that even though Obama is attacking a country that is legally sovereign, it doesn't matter because it is, de facto, a failed state?

Can anyone translate Mr. Moore for me?

If Pakistan thinks "it" is being attacked, it can say as much. But Mr. Moore's solicitude for Pakistan is admirable, a country that shares many of his values, such as torture.
4.25.2009 3:24pm
PC:
Here's a great chance for Republicans to start their revenge (which hopefully they won't do, unlike the Bush haters)

Brilliant. Prosecute the Republican Treasury Sec. and Republican appointed Fed chair for violating laws under a Republican administration. Take that Democrats!

I don't think you've thought this cunning plan through...
4.25.2009 3:24pm
Just an Observer:
John Moore really should have quit at the outset, and rested on the powerful logic of his original syllogism:

1) There are allegations of torture.

2) I attended SERE training.

3) Therefore, the allegations are false.

It has all been downhill from that point.
4.25.2009 3:27pm
mattski:

Reichfuhrer Obama and the congresscritters in the Reichstag stand as a stone wall against disclosure. What makes you think your wishes should matter to them? You're just simple volke...

I find it dubious, your pairing of our democratic leadership with the Nazis in light of your previously stated view that WWII "was a mistake."

Wouldn't you, in your kindness, tell us explicitly why we should not have fought in WWII. Was it because Europe would have been better off under a Hitler administration?
4.25.2009 3:49pm
AFJ (www):
Just an Observer really should have quit at the outset, and rested on the powerful logic of his original syllogism:

1) There are allegations of torture.

2) I hate Dick Cheney.

3) Therefore, the former vice president should be in prison, probably in a painful stress position.


Incidentally, JaO, you keep referring to orders given to the CIA by Mr. Cheney. Could you please provide some evidence for your assertions?
4.25.2009 3:50pm
MarkField (mail):

John Moore really should have quit at the outset, and rested on the powerful logic of his original syllogism:

1) There are allegations of torture.

2) I attended SERE training.

3) Therefore, the allegations are false.


Particularly since those in charge of SERE training recognized that it was torture (and that torture was ineffective).
4.25.2009 3:57pm
Jagermeister:
Jukeboxgrad: Did you read Crawford's reasoning for why she considered it torture? From the link you reference:
Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.
So it wasn't any particular act, but the cumulative effect that made it torture. You're going to have a hard time finding people whose minds are already made up to agree with that one.

But, congratulations, you have succeeded in behaving exactly the same as George Bush. You are convinced of the moral superiority of your position and the absolute correctness of your position, ignoring any inconvenient evidence to the contrary. But at least Bush and Cheney can say that they hold those opinions because their "experts" told them they were correct. You manage to hold yours in the face of multiple, divergent, opinions. So, yes, that makes you an ideologue.

It must suck to be so right all the time, and yet have so many people not accept your superior reasoning.
4.25.2009 3:58pm
Jagermeister:
Post in haste, regret at leisure: that should read, "whose minds aren't already made up..."
4.25.2009 4:00pm
Connecricut Lawyer (mail):
None of the advocates of prosecuting Bush, et al. have responded to my suggestion that a future holier-than-thou Administration could well charge Obama et al. with war crimes for killing suspected terrorists without the bother of arresting or trying them. Not to mention the killing of those in the vicinity when the predator missile lands.

There are plenty of people around the world who today, this very minute, argue that these targeted executions are war crimes. I for one think it would be unfortunate if the next Administration decided to prosecute Obama et al. for carrying them out, but if that happens, he'll have no one to blame but himself for breaking a 200 year old tradition of not seeking vengeance and retribution against prior Administrations.
4.25.2009 4:02pm
Just an Observer:
Incidentally, JaO, you keep referring to orders given to the CIA by Mr. Cheney. Could you please provide some evidence for your assertions?

Three should be no problem finding that out, since Cheney did have the intelligence portfolio delegated to him by Bush. There surely is a paper trail of someone giving the orders.

But ultimately, in my proposed scenario, I'm counting on the courageous former vice president to stipulate to all these facts in his own sworn testimony. That's taking moral responsibility.


Colonel Jessup, did you order the Code Red?

"You're damned right I did!"
4.25.2009 4:07pm
AFJ (www):
According to many on the left, the law "lives and breathes". Using their standard, we'll find the basis for prosecuting Mr. Obama and members of his administration in the blank spaces between the lines, near the rights to abortion and taxpayer-funded health insurance.
4.25.2009 4:36pm
MarkField (mail):

So it wasn't any particular act, but the cumulative effect that made it torture.


I think that's rather cold comfort.
4.25.2009 4:42pm
Ben P:

I've said to the people that we don't torture, and we don't.


"I've said to the people that we don't torture, and we don't." == "I did not have sexual relations with that woman."

However distasteful we think is is, both people had a basis for their statements. The memos at issue defined torture to be something other than what we were doing, consequently, we don't "torture."

Clinton's lawyers had agreed prior to the deposition that "sexual relations" meant only genital-genital contact, consequently, Clinton did not have "sexual relations."
4.25.2009 4:49pm
Andrew J. Lazarus (mail):
The Bush/Cheney Administration broke with a tradition dating, literally, back to George Washington forbidding torture. That may explain why they don't deserve the traditional deference from the subsequent Administration.
4.25.2009 4:50pm
Just an Observer:
The memos at issue defined torture to be something other than what we were doing, consequently, we don't "torture."

That identifies the problem.

The complicity of the OLC lawyers in the process is really the core systemic evil of the Bush administration, perhaps its worst legacy. Bush and Cheney''s contempt for the law and lawyers, and for the President's constitutional duty to "take care that the laws be faithfully executed," was the heart of a general problem -- not only torture, but also illegal surveillance and unchecked executive power.

The OLC lawyer's professional and ethical posture in drafting the torture opinions is the subject of the pending OPR investigation. Maybe they will be censured. Maybe they will get a pat on the back. We shall see.
4.25.2009 5:03pm
bbbeard (mail):
jukeboxgrad: It seems to me that a case can be made that you're completely full of shit. Please show your evidence that someone is "forcing their doctors to turn over medical records to the federal government."

Well, if it were anyone but you, it would safe to assume that you had read the Porkulus Bill err, the "American Recovery and Reinvestment Act", and we could discuss the provisions of that act. So, homework for you: Go find a copy of ARRA online and read pp 286 to 424 of Div A, dealing with "Health Information Technology", the so-called HITECH Act. The purpose of Title XIII is to create a federal database of personal health records for the purposes of government interference in, err, management of, mmm, assistance with health care decisions. E.g. go read Subtitle A, Sec 3001(c)(3)(A)(ii). The creation of this database requires mandatory compliance by health care providers. See Part 2 of HITECH, Sec 13112. But read the whole thing, there will be a quiz tomorrow.

Perfectly obvious stuff, I don't see how you could have missed it. Unless, of course, you didn't actually read all 1071 pages of the bill. Well, we'll give you a pass -- none of the wise rulers of this country saw fit to read the bill, either, before they passed it.

In plain English, the HITECH Act will require your doctor to provide an electronic copy of your health care records to the federal government. The government will in turn use this information to make sure you are getting exactly the care the government wants you to get.

The question I would like to see litigated is whether federal privacy guarantees, with which the HITECH Act is admittedly littered, are worth a bucket of warm stool. Abortion jurisprudence in this country depends heavily on a right to privacy subsumed under the Bill of Rights.(Would any abortion group passively accept federal guarantees if a legislator wanted to create a federal database of women who have had an abortion? ) So let's assume that there is in fact a constitutional right to privacy. Is that right satisfied in a situation where the government that demands access to private information, with the guarantee that only government officials, and third parties designated by the government, will have access to the information?

Can public good ever justify the massive violation of doctor-patient confidentiality that HITECH will entail? And will the co-conspirators behind this massive violation of constitutional rights ever be brought to justice? Only the Truth Commission of 2013 will be able to tell.

BBB
4.25.2009 5:05pm
Just an Observer:
Should read, "the OLC lawyers' professional and ethical posture" (plural).
4.25.2009 5:05pm
Sophomore:
"In 2002, if you had suggested that waterboarding people that had planned 9/11 would lead to prosecutions, people would have laughed at you."

Wrong on at least two counts.

First, and most importantly, people in 2002 *did* argue it would be criminal to apply waterboarding - including high-ranking JAG officers. Their argument relied upon the well established understanding of US military courts - which prosecuted Japanese for waterboarding US soldiers after WWII, and prosecuted American soldiers for using the technique against Filipino guerrilas as far back as the Spanish-American war. The novel argument here is *not* made by people who call waterboarding torture - it's by those who deny that it is.

And let's not be so delicate in describing what waterboarding is. The intended purpose of waterboarding is to give the prisoner a subjective belief that he may die by drowning. We do it precisely *because* it causes extreme terror.

The second mistake lies in arguing that everyone who was waterboarded was a mastermind of 9/11. Rhetorically, this lets you get away with just about anything - who wouldn't want to punish them, and as severely as possible? But it wasn't limited to them or even principally intended for them. The point was to get information from people who denied they had any. Maybe they did, maybe they didn't - you can't know ahead of time. And as we've learned, the CIA was mistaken (sometimes badly) about who some of the detainees were and what they knew. That's can't be a surprise to anybody who practices law. Even the wisest prosecutors acting on the best of intentions make mistakes. Give the tactic to badly trained or overzealous men and things can really go awry.
4.25.2009 5:07pm
rosetta's stones:



Reichfuhrer Obama and the congresscritters in the Reichstag stand as a stone wall against disclosure. What makes you think your wishes should matter to them? You're just simple volke...





mattski:
"I find it dubious, your pairing of our democratic leadership with the Nazis in light of your previously stated view that WWII "was a mistake."

Wouldn't you, in your kindness, tell us explicitly why we should not have fought in WWII. Was it because Europe would have been better off under a Hitler administration?"



I find it dubious as well, mattski, but useful as parody, for sure.

In the discussion above, as the previous administration's actions have been compared to any or all of Mao/Hitler/Pol Pot/Stalin/Tojo/Causescu, I think it worth pointing out that the new administration appears to be supporting those evil ways, and joining evil Cheney's mob, rather than prosecuting and hanging the evil bastage criminals.

So, either they've joined the Fourth Reich, or this is in fact a policy disagreement.

I don't know whether to be disturbed or flattered that you've taken to commenting on my understandings of the origins of WWII, but I think I'll defer the history lesson, as it does appear you're just trolling.
4.25.2009 5:21pm
Ben P:

The complicity of the OLC lawyers in the process is really the core systemic evil of the Bush administration, perhaps its worst legacy. Bush and Cheney''s contempt for the law and lawyers, and for the President's constitutional duty to "take care that the laws be faithfully executed," was the heart of a general problem -- not only torture, but also illegal surveillance and unchecked executive power.


Is it?

I've already talked to a couple people that have mocked the NR Editorial the other day, that argued "rightly considered the memos should be a source of pride." but I think it at least raises an interesting argument.

On one level we have your argument that this is the result of "contempt for law and lawyers" that led to OLC opinions legally justifying "enhanced interrogation techniques" that non legal people thought to be necessary.

But in another light, this shows at least enough respect for the law to attempt to justify it in terms of the law. Someone here asked another poster here earlier "what would merit a prosecution?"

That raises the question of why did we stop where we did, and what did the law have to do with it?
4.25.2009 5:22pm
neurodoc:
Andrew J. Lazarus:Neurodoc, you continue to miss the point. German...officials also thought they were facing grave threats...They operated from the same patriotic motives, mutatis mutandis.
Which point? One based on a likening of the Nazi's consuming genocidal effort employing gas chambers, crematoria, and other unprecedented means to achieve their horrible ends to the United States' efforts to "neutralize" the terrorists waging war against it by various means, including that which might be seen as "torture"?
Andrew J. Lazarus: When it was time to deal with the Camps, would you be happy with the Germans saying, "We don't want to be a banana republik; we just plan to look ahead."
If you think the Nazi example really has instructive value here, then please expand fully on it. The Nazi's had some rational basis to see Jews, Gypsies, and homosexuals as posing a grave threat to Germany? How exactly are those Americans who interrogated KSM the equals of those who ran the Nazi extermination camps?

If someone is missing a "point" here, it is you who doesn't grasp the implications of the same Godwin's Law you asked be waived so you could analogize to the Nazis.
4.25.2009 5:36pm
John Moore (www):

As usual, you seem to be confused about the facts. The Republicans are hardly likely to insist on prosecution of the Republican Treasury Secretary, nor would it be much "revenge" if they did.

Brain rot appears to be setting in from me reading too many of JBG's rants. It's apparently contagious.

Of course, the greater point is that criminalization of policy disputes is not a good precedent to set, and I am sure, given the complexity and vagueness of our laws, that there are plenty of things we could prosecute O' for, if the political will was there.

It is hard to go one day without violating the law in the US, and if you are a member of government, even harder.
4.25.2009 5:39pm
Just an Observer:
Ben P: But in another light, this shows at least enough respect for the law to attempt to justify it in terms of the law.

Because there were legalistic words on paper?

I often respect Rich Lowry's political opinions, but on these legal matters he and his NR colleagues remain in deep denial. The editorial apologia to which you link is way off.

What OLC should have done -- following its traditional independent, good-faith legal processes -- was produce objective adjudicatory opinions. But that is not what the Bush/Cheney policymakers wanted. Instead, OLC wrote secret advocacy briefs designed to rationalize an illegal policy, which could not stand up in the light of day.

Let's see what the nonpartisan OPR report says, and take it from there.
4.25.2009 5:41pm
neurodoc:
Just an Observer: But ultimately, in my proposed scenario, I'm counting on the courageous former vice president to stipulate to all these facts in his own sworn testimony. That's taking moral responsibility.

Colonel Jessup, did you order the Code Red?

"You're damned right I did!"
Yes, the riveting Jack Nicholson as the colonel and Tom Cruise as the earnest young JAG officer, with Demi Moore playing his aide and romantic interest. How far along are you with the script for a movie imagining a trial of Cheney, and who do you see cast in the principal roles?

Sure, dramatic possibilities, but contributes nothing to a serious discussion. (Perhaps you should consult with ArthurKirkland. He fancies himself a script writer too, and when the conversation turns to the Middle East, he narrates the movie he imagines about all the Jews relocating to the US.)
4.25.2009 5:47pm
MarkField (mail):

I for one think it would be unfortunate if the next Administration decided to prosecute Obama et al. for carrying them out, but if that happens, he'll have no one to blame but himself for breaking a 200 year old tradition of not seeking vengeance and retribution against prior Administrations.


Nobody's in favor of vengeance or retribution. We're in favor of the rule of law. From the very beginning of the Republic, officials who broke the law have been prosecuted. It's those who want to change that practice who are the radicals here.


On one level we have your argument that this is the result of "contempt for law and lawyers" that led to OLC opinions legally justifying "enhanced interrogation techniques" that non legal people thought to be necessary.

But in another light, this shows at least enough respect for the law to attempt to justify it in terms of the law.


That depends on how you interpret their motives in seeking opinions from OLC. It looks to me very much like a cynical attempt to use a phony opinion as a pseudo shield against prosecution.


Brain rot appears to be setting in from me reading too many of JBG's rants.


Don't be modest -- you give him too much credit.
4.25.2009 5:53pm
MarkField (mail):

Yes, the riveting Jack Nicholson as the colonel and Tom Cruise as the earnest young JAG officer, with Demi Moore playing his aide and romantic interest. How far along are you with the script for a movie imagining a trial of Cheney, and who do you see cast in the principal roles?


You're dodging JaO's point. If Cheney truly believed his own bullshit, he'd announce publicly that he did order torture (assuming he gave the order; or that he supported it, if someone else gave the order); that it would be wrong to prosecute anyone other than him (hypothetically) for giving such an order; and that he is prepared to stand trial and defend all charges on the ground of necessity (the only possible legal defense he has). What he's doing instead is what Col. Jessup did -- let the little guys take the fall. That's gutless.
4.25.2009 5:58pm
John Oh (mail):
Use the same hard hitting investigative techniques, commissions and hearings that were used for Ruby Ridge and Mt. Carmel. Ignore the Delta Force/military personnel on the ground and the incindiary tear gas. And yes, let's please start asking who gave the order . . . Use the same creative lawyering that was used to turn Elian Gonzales into and out of whatever status was needed to get him out of his new home in Florida and back to his father's home in Cuba. Always place your faith in the rule of law.

If we do this, everything will turn out ok.
4.25.2009 6:05pm
Just an Observer:
Yes, the riveting Jack Nicholson as the colonel and Tom Cruise as the earnest young JAG officer, with Demi Moore playing his aide and romantic interest. How far along are you with the script for a movie imagining a trial of Cheney, and who do you see cast in the principal roles?


I'm not writing a movie script. I'm just making a pop literary metaphor to explain moral courage and responsibility, basic concepts that you and others were having trouble grasping.

Just to complete the remedial metaphor, Cheney today is mimicking the cowardly position that Col. Jessep took for most of the movie: He gave illegal orders, which put subordinates in jeopardy, and refused to take responsibility for them. (Only at the very end, under duress, did Jessep own up to the facts.)

Actually I am fully aware that this is fiction. I think that in real life, Cheney is a coward at heart, and never will take moral responsibility. He behaves as if legal accountability is just for CIA officers, like the young Marines in the movie. Cheney will continue to hide behind the meme that these are just "policy" differences, so high officials like him are beyond reach of the law.

Mr. Vice President, tell it to the judge!
4.25.2009 6:07pm
mattski:

but I think I'll defer the history lesson, as it does appear you're just trolling.

Just trolling? I'm not sure what you mean by that.

No, I'm genuinely curious why you believe it was a mistake to fight WWII. And for your benefit I'll confess that the last person who stated that opinion to me (the exact same opinion) was a big fan of Hitler who did not believe the Holocaust took place.
4.25.2009 6:21pm
rosetta's stones:

Just an Observer:
"Cheney will continue to hide behind the meme that these are just "policy" differences, so high officials like him are beyond reach of the law."


JAO,

Cheney's out fly-fishing or maybe doing some target shooting on lawyers, better forget about him, he's out now.

The "reach of the law" is the length of Holder's arm, and he doesn't appear to be stretching it out any.

The "meme" that these are just "policy differences" is being redistributed in the WH briefing room daily.

Better get the impeachment hearings cranked up, these guys appear to be running amok!
4.25.2009 6:24pm
rosetta's stones:
Well, mattski, as you appear to want education, you can start by citing the relevant quote you're questioning. That'll be your first class assignment.

And no, the last person you spoke to needn't be quoted in your assignment.
4.25.2009 6:27pm
Jeff Walden (www):
In response to jukeboxgrad:

I think Wayne Jarvis should not be stealing from Rush without giving credit (I'm using that word loosely).


I think I skimmed the thread too aggressively to notice that comment. (Egads, this will be comment 303 unless someone beats me on this! I don't regularly jump over to comments, but I don't remember much even up to 200 in the past.) If it was stealing, acknowledgment would be nice, but as it seems possible it was independently created as it's one of the more obvious political events to twist (particularly in light of the remaining pirate's mother's plea), I wouldn't immediately presume the suggestion was stealing.
4.25.2009 6:57pm
mattski:

Well, mattski, as you appear to want education, you can start by citing the relevant quote you're questioning.

That's kind of presumptuous of you, isn't it? Maybe I'm more educated than you. Did you think of that possibility?

You appear quite cagey about your beliefs. Is there something you're ashamed of?
4.25.2009 7:17pm
rosetta's stones:
Yes, as previously noted, you're trolling.
4.25.2009 7:23pm
Michael Ejercito (mail) (www):

The Bush/Cheney Administration broke with a tradition dating, literally, back to George Washington forbidding torture. That may explain why they don't deserve the traditional deference from the subsequent Administration.



Read this excerpt. Note that the water torture mentioned in this book excerpt involves a lot more water than waterboarding does.


First, and most importantly, people in 2002 *did* argue it would be criminal to apply waterboarding - including high-ranking JAG officers. Their argument relied upon the well established understanding of US military courts - which prosecuted Japanese for waterboarding US soldiers after WWII, and prosecuted American soldiers for using the technique against Filipino guerrilas as far back as the Spanish-American war. The novel argument here is *not* made by people who call waterboarding torture - it's by those who deny that it is.

Just because waterboarding violates the law does not mean it constitutes torture.

Not every abuse of prisoners meets the definition of torture.
4.25.2009 8:10pm
mattski:

Yes, as previously noted, you're trolling.

No. You're too chickenshit to explain yourself. You're the one who volunteered the opinion, on more than one occasion, that it was a mistake to fight WWII. You just don't want to explain your position.
4.25.2009 8:31pm
Michael Ejercito (mail) (www):

prosecuted American soldiers for using the technique against Filipino guerrilas as far back as the Spanish-American war.

It should be noted that those who were prosecuted for waterboarding Filipino guerillas were soldiers, not spies.

Enhanced interrogation methods may very well violate the UCMJ- and the UCMJ does not have a lack of protected status defense.
4.25.2009 8:50pm
jukeboxgrad (mail):
mark:

The point is to harass your political enemies, make them spend time and money on court cases and if you get lucky damage or destroy them politically.


Funny how the Ken Starr story keeps popping up over and over again.

============
byomtov:

And it's hard to think of any other way to explain the fact that we waterboarded KSM 183 times.


It's hard only if you believe that the waterboardings were really an attempt to get information. I find that proposition incredible.


We did indeed torture in "an attempt to get information," provided that one defines false confessions as a form of "information."

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

Now that a couple of my fellow veterans have turned up and validate my claims, you are reduced to saying they are irrelevant.


You have a very loose concept of "validate." But we already knew that. And why is it irrelevant to point out that your claims are irrelevant?

Why should anyone pay attention to your long rants?


Let me take a wild guess: because I make factual claims that are relevant and scrupulously documented? Here's another wild guess: because I make a serious attempt to address every serious question addressed to me, instead of cowardly evading questions the way you do?

Anyway, why are you paying attention to my posts? Did someone tell you that if you didn't, you "could be courts martialed and lose all security clearances for life?" Not everything you hear is true, so even if you did hear that, it's still not true.

And if you do stop paying attention to my posts, I promise that I'll eventually find a way to get over the pain and sadness. So your conscience should be clear. With regard to that, at least.

But speaking of responsibility, I wonder if you're ever going to retract your false claims which I pointed out here.

And then, just to sweeten the pot, you write (re Cheney):
Aside from that, feel free to explain how leaking Plame's identity did not demonstrate that Cheney was indeed "willing to release information for political benefit that may help our foe."


I guess this is your way of letting us know that you intend to duck that question, too. Just like you repeatedly ducked this one.

all this blabbering about prosecuting Bushies is about de jure status, not de factor.


Huh? What? Speaking of "blabbering," could you try saying that again in English? You seem to be claiming that our torture is not a 'fact.' So McCain's a liar? Because he said waterboarding is torture. I hope you'll tell us what you know about torture that he doesn't. Maybe something you learned in SERE school?

High value information came from interrogations in which those methods were used


Blair's statement has already been thoroughly addressed, here and here. Please keep up.

Anyway, I know you're busy (ducking questions is hard work), so let me write your next post for you:

Hi, I'm moore, and I went to SERE school. Did I mention that I went to SERE school?


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

I respect you, except for how long it took you to figure out jbg. Still, took me a while, too.


You and moore should get along just fine, since you have a track record (example, example, example, example, example) remarkably similar to his. Birds of a feather.

============
money:

I cannot imagine anyone spending one seocnd of this life loger than it takes to scrill past KBG's rants.


Speaking of reading, are you still reading your way through the statute? I know it has some big words you might find challenging, like this one: "custody." If you ever figure out what that word means, you might want to reconsider your bizarre claim "that the troops who had been water boarded had a cause of action." I realize you're attached to that claim; you made it again here. And as soon as you get Congress to rewrite the statute, your claim might become something other than gibberish. Better start writing those letters! Don't forget you also have to get them to change the part about "outside the United States."

Also, if you don't read my posts, how do you know they're "rants?" I want some of those clairvoyant powers you've got. Anyway, if you've decided to skip them, I'm obliged to express my sincere gratitude. I appreciate the reverse endorsement, and it takes a very special person to offer a reverse endorsement as meaningful as yours.

Why is everyone ignoring this?


Because it's unsupported counterfactual drivel, like almost everything else you say. Next question.
4.25.2009 9:06pm
jukeboxgrad (mail):
jager:

it wasn't any particular act, but the cumulative effect that made it torture.


Exactly. Qahtani wasn't waterboarded, but he was tortured via other means that had a cumulative effect.

You're going to have a hard time finding people whose minds are already made up to agree with that one.


You seem to be making the wacky claim that if a particular act performed once is not torture, then it cannot possibly be considered torture, even if it's repeated many times. Because there's no relevance to the concept of "cumulative effect." Really? Hmm, let's see. Say I deprive you of sleep for one hour. Then I walk away and never see you again. Not torture, right? Now let's say I deprive you of sleep for one hour, and then come back ten minutes later and do it again. And let's say I repeat this process, say, a thousand times. That means you haven't slept for 49 days. Still not torture? Really?

You should take your strange concept (denying the reality of "cumulative effect") to prominent torture apologist Cliff May at NR, who said this:

Time and intensity are relevant factors. Who would argue that a single night of sleep deprivation constitutes torture? Who would argue that a month of sleep deprivation is not?


"Who would argue that?" We know who. You. (And maybe Yoo would too, I suppose.) So would you please get in touch with May and let him know that he's wrong to suggest that there couldn't possibly be anyone as wacky as you?

You are convinced of the moral superiority of your position and the absolute correctness of your position, ignoring any inconvenient evidence to the contrary.


What "evidence" to the contrary? If by "evidence" you mean wacky, unsupported claims that even Cliff May would laugh at, then you're right, I'm definitely ignoring "evidence." Yes, I'm sure you have lots of "evidence." But when are you going to tell us where it's hidden? Maybe in some secret memos that Cheney never released, even when he was perfectly capable of doing so? And even though he had every conceivable reason to do so?

Wait a minute, I think I know where to find "evidence" to support your claims. It's just a question of looking in the right place. It goes something like this: "We know where they are. They're in the area around Tikrit and Baghdad and east, west, south and north somewhat."

You manage to hold yours in the face of multiple, divergent, opinions. So, yes, that makes you an ideologue.


How radical of me. I reach conclusions by examining evidence, instead of blindly accepting nutty, unsupported claims made by you. And when I compare your resume to Crawford's, for some strange reason I decide to take her statements more seriously than yours. How ideological of me! Here's a clue: ranking her judgment higher than yours isn't ideological. It's rational.

And speaking of "ideologue," I notice you haven't lifted a finger to try to explain why Bush repeatedly expressed certainty about us not torturing, even though you conceded that "the definitions were sufficiently cloudy, and the activities close enough to the line … that certainty was missing." Why did he express certainty even though "certainty was missing?" And how striking to notice that he did exactly the same thing with WMD.

It must suck to be so right all the time, and yet have so many people not accept your superior reasoning


On the contrary. It doesn't suck at all. Just think about the quality of the people. That makes all the difference in the world. Not everyone is in a position to collect reverse endorsements from people like you, aubrey, moore and money. So my gratitude to you is deep.
4.25.2009 9:06pm
jukeboxgrad (mail):
ben:

But in another light, this shows at least enough respect for the law to attempt to justify it in terms of the law.


When a crook hires a crooked lawyer to give the crook some legal cover, that doesn't show "respect for the law." It shows respect for the crook's desire to cover his ass.

That raises the question of why did we stop where we did, and what did the law have to do with it?


That raises the question of why you're assuming you actually know where we stopped. It's a documented fact that we beat people to death. How do you know the CIA didn't drown anyone? Because you trust them to tell you the truth about what they did? Even though the memos make claims that embody a belief in time travel?

============
neuro:

The Nazi's had some rational basis to see Jews, Gypsies, and homosexuals as posing a grave threat to Germany?


We had some rational basis to view Dilawar as a grave threat to the US? And if not, why did we beat him to death?

============
john:

Use the same hard hitting investigative techniques, commissions and hearings that were used for Ruby Ridge


Ruby Ridge happened while Bush I was president. You're blaming Clinton for not investigating Bush I? I haven't heard that one lately.

============
JaO:

I think that in real life, Cheney is a coward at heart


Most people probably don't know that Dick Cheney avoided the draft by using his dick.

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

you can start by citing the relevant quote you're questioning


Maybe he's thinking of this:

I'm one of those who thinks that that war was unnecessary and could have been avoided


By the way, did you ever resolve your confusion about what Soufan said? It seems that you got so confused that you completely disappeared.

============
jeff:

I wouldn't immediately presume the suggestion was stealing.


Fair enough. I made a guess, and the guess could be wrong. If he shows up and asks for an apology, I'll give him one. But in the absence of a follow-up statement, I'm still guessing that my guess is correct.

============
ejercito:

Note that the water torture mentioned in this book excerpt involves a lot more water than waterboarding does.


Note that you're introducing information that's entirely irrelevant. There are many forms of water torture other than the form of water torture we used. That doesn't mean the form of water torture we used is something other than water torture.

Just because waterboarding violates the law does not mean it constitutes torture.


There are many ways that we know waterboarding is torture. Here's one: we called it torture when the Japanese did it. They used various methods, including the method we used. And we called it torture, and prosecuted them for it, when they used that method (pdf). So feel free to explain why it's torture when they do it, but not when we do it.

Not every abuse of prisoners meets the definition of torture.


Not every person who has the ability to type a comment also has the ability to type a comment that makes sense.

By the way, if you are conceding that "waterboarding violates the law," then why shouldn't the people who violated the law be punished for violating the law?

It should be noted that those who were prosecuted for waterboarding Filipino guerillas were soldiers, not spies.


It should be noted that there is no exception in the federal anti-torture statute for torturers who happen to be spies.

Enhanced interrogation methods may very well violate the UCMJ- and the UCMJ does not have a lack of protected status defense.


The problem is not that "enhanced interrogation methods … violate the UCMJ." The problem is that torture violates the federal anti-torture statute. And waterboarding is torture.

Please continue your feeble attempts at misdirection. They are mildly entertaining.
4.25.2009 9:07pm
jukeboxgrad (mail):
bbbeard

Go find a copy of ARRA online


I did. It's here (pdf).

read pp 286 to 424 of Div A, dealing with "Health Information Technology", the so-called HITECH Act.


You're citing the wrong page numbers. Title XIII is on p. 112.

The purpose of Title XIII is to create a federal database of personal health records for the purposes of government interference in, err, management of, mmm, assistance with health care decisions.


Wrong. The purpose of Title XIII is to encourage health providers to use computers instead of paper. And this is just a continuation of an effort Bush started in 2004. More about this here (pdf), here and here.

go read Subtitle A, Sec 3001(c)(3)(A)(ii)


I did. It's on p.117. It makes reference to "the utilization of an electronic health record for each person in the United States by 2014." That means making a coordinated national effort for health care providers to stop using paper and start using computers. And the idea of doing this in a coordinated way is that health providers will then be able to communicate with each other concerning their patients, as compared with having a Tower of Babel. Which is pretty much what we have now, and it's one of the reasons costs are high.

The creation of this database requires mandatory compliance by health care providers.


You're implying that there will be a central federal database of personal health records. Wrong. Where does the bill say that? "Mandatory compliance" means health providers are going to be pressured to use computers instead of paper.

See Part 2 of HITECH, Sec 13112.


That's on p. 129:

SEC. 13112. APPLICATION TO PRIVATE ENTITIES. Each agency (as defined in such Executive Order issued on August 22, 2006, relating to promoting quality and efficient health care in Federal government administered or sponsored health care programs) shall require in contracts or agreements with health care providers, health plans, or health insurance issuers that as each provider, plan, or issuer implements, acquires, or upgrades health information technology systems, it shall utilize, where available, health information technology systems and products that meet standards and implementation specifications adopted under section 3004 of the Public Health Service Act, as added by section 13101.


That means the government is going to pressure health providers to use computers instead of paper, and to also use computer systems that meet national standards. The point of the standards is so different health providers can communicate with each other. Do you understand the concept of standards? A good place to learn is to read about the history of railroads. In 1860, "seven different gauges were in use in America."

This phony medical records story you're peddling has already been covered at VC, here.

the HITECH Act will require your doctor to provide an electronic copy of your health care records to the federal government


Complete, unadulterated bullshit. Show us where the bill says that.

there will be a quiz tomorrow


The answer to the quiz is already obvious: you're full of it, as I said.

What a surprise that the same people who lied about WMD and about torture are also lying about almost everything else.
4.25.2009 9:07pm
jukeboxgrad (mail):
I just noticed this wonderful Freudian slip from Bush:

we adhere to the international convention of torture


I love it when he tells the truth despite himself. Many, many entertaining examples of exactly that are here.
4.25.2009 9:07pm
Michael Ejercito (mail) (www):

There are many ways that we know waterboarding is torture. Here's one: we called it torture when the Japanese did it. They used various methods, including the method we used. And we called it torture, and prosecuted them for it, when they used that method (pdf). So feel free to explain why it's torture when they do it, but not when we do it.

It has to do with Al Qaeda's lack of protected person status . Nobody is suggesting that Afghan or Iraqi POW's should be waterboarded, let alone that it would be legal to do so.



It should be noted that there is no exception in the federal anti-torture statute for torturers who happen to be spies.


Did not the enhanced interrogations take place in foreign countries like Poland or Thailand? Pretty difficult to exercise federal jurisdiction over those places
4.25.2009 9:15pm
Michael Ejercito (mail) (www):

You seem to be making the wacky claim that if a particular act performed once is not torture, then it cannot possibly be considered torture, even if it's repeated many times. Because there's no relevance to the concept of "cumulative effect." Really? Hmm, let's see. Say I deprive you of sleep for one hour. Then I walk away and never see you again. Not torture, right? Now let's say I deprive you of sleep for one hour, and then come back ten minutes later and do it again. And let's say I repeat this process, say, a thousand times. That means you haven't slept for 49 days. Still not torture? Really?

Sleep deprivation is not torture, period .
4.25.2009 9:17pm
zuch (mail) (www):
John Moore:
Here's a great chance for Republicans to start their revenge (which hopefully they won't do, unlike the Bush haters):
Legal experts say the SEC could go after federal officials for aiding and abetting if they did in fact tell [Bank of America CEO Ken] Lewis to keep mum on Merrill’s mounting losses, but that it is the bank’s obligation to inform shareholders of decisions that could materially affect the firm’s fortunes.

Lewis said he was instructed to not make a public disclosure about potential government financing. When asked where that instruction came from, Lewis responded: “Paulson.”
Ummmm .... Paulson was Dubya's Terasury Secretary.

Cheers,
4.25.2009 9:26pm
MarkField (mail):

Did not the enhanced interrogations take place in foreign countries like Poland or Thailand? Pretty difficult to exercise federal jurisdiction over those places


The torture statute ONLY applies to acts done overseas.
4.25.2009 9:40pm
Andrew J. Lazarus (mail):
Ejercito: (1) I wasn't aware of the mistreatment of suspected deserters in the Civil War. I don't believe, however, that the showers used were as bad as or worse than waterboarding. I don't think you can conclude this from the fact they use more water. (2) Whether AQ members are protected persons in the sense of GC POWs is irrelevant to the International Convention Against Torture, and also to GC Common Article 3. (3) The USA has long-arm statutes with respect to torture and with respect to certain other crimes. Go on a child-sex tour of Thailand. When you come back, you will discover something about Federal jurisdiction. (4) Sleep deprivation was a favorite torture technique of Communist secret police, because it left no marks. Menachem Begin (no softie):
In the head of the interrogated prisoner, a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep... Anyone who has experienced this desire knows that not even hunger and thirst are comparable with it.
But thanks for playing.
4.25.2009 10:17pm
jukeboxgrad (mail):
ejercito:

It has to do with Al Qaeda's lack of protected person status .


It has to do with the fact that you're not coming even remotely close to making any kind of sense.

Usually people use the term "protected person" in connection with the Geneva Convention. It's true that AQ are not POWs with respect to GC, but they are nevertheless protected by Common Article 3. Torturing AQ is a violation of CA3 of the GC.

Torturing AQ is also a violation of the federal anti-torture statute. The federal anti-torture statute embodies no concept of a "protected person." All of the following are treated as protected persons under the federal anti-torture statute: all persons. Period.

Sleep deprivation is not torture, period .


We're so glad that you've decided to share your erudite opinion with us. Now please demonstrate that there's someone of any status who agrees with you. The Bush State Dept has described sleep deprivation as torture. Likewise for NR (Cliff May). Here's Rich Lowry:

Several of the harshest methods — sleep deprivation, stress positions, and waterboarding — could easily constitute torture, depending on their application.


When you find yourself expressing an opinion to the right of Rich Lowry, I think it's safe to say you're out on a limb.
4.25.2009 10:29pm
John Moore (www):

Nobody's in favor of vengeance or retribution. We're in favor of the rule of law.

And pigs can fly.
4.25.2009 10:35pm
Andrew J. Lazarus (mail):
Neuro:
The Nazi's had some rational basis to see Jews, Gypsies, and homosexuals as posing a grave threat to Germany?
Quick change you made there. It used to be more of a good faith test. Even if irrational, the Germans certainly believed they were threatened by the "inferior" races. Are you obscuring the issue, or are you claiming that torture is acceptable when it passes some rational basis test? It would be hard, on such a test, to condemn Nazi torture of Resistance movements, or Japanese torture of captured Americans, wouldn't it?

Why don't you just admit that our torture is good, and their torture is bad? It will save you endless embarrassment in trying to deal with historical reality.
4.26.2009 12:01am
Anderson (mail):
Go on a child-sex tour of Thailand. When you come back, you will discover something about Federal jurisdiction.

Or, you could just take our word for it.

Sleep deprivation is not torture, period .

Oh lord. Where do you people come from?

Jane Mayer (quoted here):

The effects of sleep deprivation ... were well known to be serious. Menachem Begin, the Israeli Prime Minister from 1977 to 1982, who was tortured by the KGB as a young man, described it as so difficult to withstand that it led quickly to false confessions. In his book White Nights: The Story of a Prisoner in Russia, he wrote, "In the head of the interrogated prisoner, a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep. Anyone who has experienced this desire knows that not even hunger and thirst are comparable with it.
"I came across prisoners who signed what they were ordered to sign, only to get what the interrogator promised them. He did not promise them their liberty; he did not promise them food to sate themselves. He promised them - if they signed - uninterrupted sleep! And, having signed, there was nothing in the world that could move them to risk again such nights and such days."

A former CIA officer, knowledgeable and supportive of the terrorist interrogation program, said simply, "Sleep deprivation works. Your electrolyte balance changes. You lose all balance and ability to think rationally. Stuff comes out." But even in the Middle Ages, when it was called tormentum insomniae, professional torturers eschewed sleep deprivation, recognizing that the illusions and delusions it caused were more apt to produce false confessions than real ones. Historically, it was the favored choice only of witch hunters, who believed it accurately revealed evidence of pacts with the devil. For decades, it was defined in the United States as an illegal form of torture. An American Bar Association report, published in 1930 and cited in a later U.S. Supreme Court decision, said, "It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired." But it became American policy in 2001, and continues to be.


Robert Conquest, in The Great Terror: A Reevaluation:

When there was time, the basic NKVD method for obtaining confessions and breaking the accused man was the "conveyor" -- continual interrogation by relays of police for hours and days on end. As with many phenomena of the Stalin period, it has the advantage that it could not easily be condemned by any simple principle. Clearly, it amounted to unfair pressure after a certain time and to actual physical torture later still, but when? No absolutely precise answer could ever be given.

But at any rate, after even twelve hours, it is extremely uncomfortable. After a day, it becomes very hard. And after two or three days, the victim is actually physically poisoned by fatigue. It was "as painful as any torture." In fact, we are told, though some prisoners had been known to resist torture, it was almost unheard of for the conveyor not to succeed if kept up long enough. One week is reported as enough to break almost anybody....

There is nothing new about the conveyor method. It was used on witches in Scotland. The philosopher Campanella, who withstood all other tortures in the sixteenth century, succumbed to lack of sleep. Hallucinations occur. Flies buzz about. Smoke seems to rise before the prisoner's eyes, and so on.
4.26.2009 12:06am
Anderson (mail):
(Ach, "reassessment," not "reevaluation.")
4.26.2009 12:06am
neurodoc:
Andrew J. LazarusWhen it was time to deal with the Camps...
I misunderstood, you weren't speaking about Nazi concentration camps? And you don't mean to suggest any analogy between the Nazi's treatment of Jews and US interrogators treatment of KSM?
4.26.2009 12:34am
John Moore (www):
Three is a constant logical fallacy being presented here. There is the implication or statement that since a notorious agency (NKVD, Gestapo, etc) used a technique, then it must be torture.
4.26.2009 1:09am
Anderson (mail):
There is the implication or statement that since a notorious agency (NKVD, Gestapo, etc) used a technique, then it must be torture.

I presume you're not referring to my 12:06 comment above, since it provides much more detail than any such mere equivalence.

That said, when a technique is common among evil people but generally eschewed by free nations, a prudent person might be skeptical about that technique.
4.26.2009 1:17am
Andrew J. Lazarus (mail):
Neurodoc, I will concede there is that the Nazis' extermination camps were a higher degree of war crime than our torture of detainees. However, my point stands: we have never accepted 'let bygones be bygones' about anybody else's war crimes. Including Henry Wirz.

Speaking of Nazis, since they were so evil, how did we treat them?
4.26.2009 1:30am
Andrew J. Lazarus (mail):
Hit post too soon, meant to add
"We got more information out of a German general with a game of chess or Ping-Pong than they do today, with their torture," said Henry Kolm, 90, an MIT physicist who had been assigned to play chess in Germany with Hitler's deputy, Rudolf Hess.
4.26.2009 1:31am
Dan M.:
Well, I think saying that sleep deprivation is/is not torture is imprecise.

Keeping someone awake for days on end is mild torture, to the point of extreme if it lasts more than, say, 3 days. Interrupting someone's sleep every day so that they don't get a full 8 hours isn't. I don't think that only allowing someone to get a couple of hours of fitful sleep each day for several days on end, that's in isolation not much more torturous than working in an Emergency Room.

So when someone refers to the "sleep deprivation" that our CIA agents used, what exactly are they referring to? The only thing I've seen mentioned is that they played loud music. So if that's torture, did anyone get prosecuted for the torture of the Branch Davidians?
4.26.2009 1:31am
Dan M.:
"As the siege wore on, two factions developed within the FBI,[21] one believing negotiation to be the answer, the other, force. Increasingly aggressive techniques were used to try to make the Davidians leave. Outside the compound nine disarmed Bradley Fighting Vehicles and five M-60 combat engineering vehicles (CEVs) obtained from the US Army began patrolling.[21] The armored vehicles were used to destroy perimeter fencing and outbuildings and crush cars and children's bicycles belonging to the Davidians. The tanks repeatedly drove over the grave of Davidian Peter Gent despite protests by the Davidians and the negotiators. Music (heavily distorted) and disturbing sounds including the squeals of a rabbit being slaughtered[33] were played at very high volume.[21] Two of the three water storage tanks on the roof of the main building had been shot at and holed in the initial ATF raid. Eventually the FBI cut all power and water to the compound, forcing those inside to survive on rain water and stockpiled United States Army Meal, Ready-to-Eat rations.[21]"

I will absolutely support investigating the Bush administration for torture and prosecuting if we do the same thing to everyone involved with the siege at Waco.
4.26.2009 1:40am
ArthurKirkland:

But the catharsis of disclosure you describe has not really happened yet, and there is much we still don't know. Making the miscreants endure a couple of weeks of chatter on cable TV is hardly sufficient. Heck, this barely registers above the chatter over the Miss USA pageant
.

The disclosure I expect has barely begun, and has nothing to do with "a copule of weeks of chatter."

There is plenty of material -- prisoners beaten to death while shackled (one body iced down until an effort to sneak it out of the building); videotapes so damning a CIA official destroyed a bunch of them for fear of public reaction; testimony, including that of whistleblowers; e-mails, including many mistakenly believed to have been erased; memoranda authored by those who facilitated misconduct and those who opposed it (such as several military commanders); a large volume of photographs of reprehensible conduct at a number of locations; kidnappings; prisoners still unaccounted for; mistreatment of innocents -- and the pattern of release already underway foreshadows a sustained, carefully arranged crescendo.

The effect on the public, and on wrongdoers, of such a stream of evidence should be substantial. I believe it to be worthwhile to observe where we stand after the public has viewed the evidence the wrongdoers strove so intently to conceal for years. Disclosure might be enough to disincline recurrence, perhaps in conjunction with clarifying or corrective legislation.
4.26.2009 1:59am
jukeboxgrad (mail):
ejercito:

Sleep deprivation is not torture, period .


Simple question: how do you know?

Another simple question: what's the longest period of time that you, personally, have gone without any sleep whatsover? Extra credit if you did this while continuously shackled in a standing position.

===================
dan:

Keeping someone awake for days on end is mild torture, to the point of extreme if it lasts more than, say, 3 days. … So when someone refers to the "sleep deprivation" that our CIA agents used, what exactly are they referring to?


They're referring to what's clearly documented in the memos. Have you considered reading them? You might be interesting in knowing what our government has been doing in our name. For example, see here (pdf, p. 11). You are shackled in a standing position for a period of up to 180 hours, continuously. This completely prevents any sleep whatsoever during that period. That's more than double the period of time that you just described as extreme torture.

Aside from the sleep deprivation, just imagine standing, continuously, for 180 hours.

Now that you know that the CIA has committed extreme torture, what do you think we should do about that? Do you believe that this is a violation of the federal anti-torture statute? Do you believe this violation should be ignored? Even though it was done as a matter of policy set at senior levels, and not just the act of a few 'bad apples?'

Keep in mind some other factors. You might also be nude (wearing a diaper). You might also have your hands extended over your head, for periods of up to two hours at a time. You are also probably on a pure liquid diet that is calorie-limited, and amounts to a form of partial starvation (we call this "dietary manipulation," and we claim that it makes sleep deprivation more effective). You also might be in an environment where you are subjected to extremes of heat or cold.

And this is just what we know about, at this point. Only a fool would think we have been told the full extent of what was actually done.

I will absolutely support investigating the Bush administration for torture and prosecuting if we do the same thing to everyone involved with the siege at Waco.


What's wrong with you? You mean you don't want to investigate what happened during the Bush I administration at Ruby Ridge? You should explain that to John Oh, who claims that Ruby Ridge is a problem.
4.26.2009 7:57am
Dan M.:
I didn't read the memos. Right now I'm having to use an old computer with incredibly limited hard drive space and don't have a PDF viewer. That's why I asked specifically what was being referred to because I disagreed with the blanket statement that sleep deprivation is torture and also the reverse statement.

I'm not convinced that someone who is shackled in a standing position for 180 straight hours isn't able to doze off.

I'm asking about investigations and prosecutions for torture, which has nothing to do with Ruby Ridge. Would you support torture prosecutions for those who authorized the tactics employed at Waco?
4.26.2009 8:23am
Dan M.:
Maybe we should give the torture heroes endorsement gigs.
4.26.2009 8:29am
jukeboxgrad (mail):
dan:

I disagreed with the blanket statement that sleep deprivation is torture and also the reverse statement.


Nice job with the straw man. What "blanket statement?" (And maybe you should try to avoid using that word in a discussion about sleep deprivation.) No one has claimed that being deprived of a small amount of sleep is a form of torture. The term "sleep deprivation" is understood to mean being deprived of a significant amount of sleep.

I didn't read the memos. Right now I'm having to use an old computer with incredibly limited hard drive space and don't have a PDF viewer.


The relevant text can be seen without a PDF viewer, here:

You have informed us that the detainee is not allowed, to hang from or support his body weight with the shackles. Rather, we understand that the shackles are only used as a passive means to keep the detainee standing and thus to prevent him from falling asleep; should the detainee begin to fall asleep, he will lose his balance and awaken, either because of the sensation of losing his balance or because of the restraining tension of the shackles.


(Emphasis added.)

I'm not convinced that someone who is shackled in a standing position for 180 straight hours isn't able to doze off.


We keep the prisoner awake, continuously, for 180 hours. The shackles are cleverly designed to make sure you aren't "able to doze off."

Let us know when you're ready to face the fact that the CIA committed extreme torture (your words).

I'm asking about investigations and prosecutions for torture, which has nothing to do with Ruby Ridge.


Shooting someone isn't a form of torture, or something worse than torture?

Would you support torture prosecutions for those who authorized the tactics employed at Waco?


There are a number of problems with "torture prosecutions for those who authorized the tactics employed at Waco." Here's one of them: the federal anti-torture statute only applies to acts that take place outside the US.

Maybe we should give the torture heroes endorsement gigs.


Let us know if you think that the people who committed extreme torture should be called "heroes." My idea of a hero is someone like Ali Soufan, who was smart enough to get valuable information without committing war crimes.
4.26.2009 9:00am
Richard Aubrey (mail):
Don't forget all the congresscritters who were repeatedly briefed on this with nary a word in objection.
Hell, you don't even have to investigate or indict them. The other accused can call them as witnesses.
That can start at the first trial of the Bush admin guys.
Don't have to wait for the next admin.
4.26.2009 9:03am
Mark in Texas (mail):
jukeboxgrad - Funny how the Ken Starr story keeps popping up over and over again.

So you don't think that there is anything wrong with the way Ronny Earl operates?

That's pretty much what I expected. Fiat justitia, ruat coelum when it serves your political purposes. Otherwise, not so much.

By the way, thanks for putting my name at the top. I usually scroll over your posts and I would have missed your reply otherwise.
4.26.2009 9:28am
Dan M.:
When you were describing sleep deprivation earlier you described a situation where a person got 10 minutes of sleep after every hour for 49 days. That sounds pretty terrible, but I wouldn't call it torture. Being deprived of a significant amount of sleep still has to meet a certain threshold to be considered torture.

If they rigged him up in such a way that he must stand up so that it is impossible for him to fall asleep for 180 straight hours, sure I'll call that torture, though looking back calling it extreme after 3 days was lowballing it quite a bit.

And how in the hell is murdering someone with a bullet to the head a form of torture? Seriously?

Lon Horiuchi was charged with murder so I don't really know what you are suggesting. One of the great judges dropped the charges, though, and said he had a license to kill.

The line about the torture 'heroes' getting endorsement gigs was a joke. Did you click the link?

So the federal anti-torture statute only applies overseas? Hell, why didn't the torture memos simply say "Just bring them to US soil and torture them and it's all legal!"?

Surely the torture at Waco at least merits prosecutions for human rights violations, right? If a Texas Sheriff in 1983 was prosecuted by the Justice Department for waterboarding, surely there is some crime that the torturers at Waco committed.
4.26.2009 9:37am
mattski:

I will absolutely support investigating the Bush administration for torture and prosecuting if we do the same thing to everyone involved with the siege at Waco.

Dan, I assume you've seen the documentary film, 'Waco: Rules of Engagement'? I was impressed by that film. But one of the points that I thought came across pretty clearly was that there was a concerted effort by mid-level BATF/FBI elements to keep the top level Justice Department people out of the loop as much as possible. What do you think?
4.26.2009 9:41am
Anderson (mail):
should the detainee begin to fall asleep, he will lose his balance and awaken, either because of the sensation of losing his balance or because of the restraining tension of the shackles

"Restraining tension." I love it. "Pain" was too short a word.

The pain is what keeps one awake. Dan M. has hit upon the fact that sleep deprivation doesn't work by itself; it requires the threat or infliction of pain. Sufficiently severe pain to overcome the very powerful need for sleep, which Menachem Begin, supra, called greater than hunger or thirst.

And the Torture Act forbids inflicting "severe physical pain."

A good-faith OLC memo would have explored these questions.
4.26.2009 9:44am
Anderson (mail):
Also, I don't quite get Dan's implication that everyone here thinks Waco was handled just fine. My dad, a former ATF/Treasury agent, was contemptuous of the agents who precipitated the incident -- thought they were going to waltz in, kick in some doors, and be badasses.
4.26.2009 9:45am
mattski:

thought they were going to waltz in, kick in some doors, and be badasses.

As I remember the film, those guys who conducted the raid were completely out of control. They were vigilantes, little more.
4.26.2009 10:02am
Dan M.:
mattski:

I don't recall the details from watching Rules of Engagement or the sequel regarding who authorized what. Once the music blaring and the like began, though, I would assume that somebody up high could have put an end to it if they'd found it at all objectionable.

Anderson:

Where have I implied that I think everyone else thinks Waco was handled well? I've simply asked where the prosecutions are for the handling of the Waco siege.

Have I implied that I think the situation with KSM and the others was handled well? I stated emphatically that I supported prosecution if we are going to prosecute the perpetrators of the Waco siege. Surely Obama and the DoJ could make a show of declassifying some documents and prosecuting some FBI agents and perhaps Janet Reno or anyone else who authorized the tactics used at Waco.

I also would love to see prosecutions for those who kidnapped the children at the FLDS ranch.

There's plenty of abuse of state and federal power that's much higher up on my outrage meter than the torture of Al Qaeda members.
4.26.2009 10:04am
mattski:

Once the music blaring and the like began, though, I would assume that somebody up high could have put an end to it if they'd found it at all objectionable.

I think that's a good example of a question that hinges on how much information the people at the top had. And were the (rogue) elements on the ground sharing information all the way up the chain of command. The movie strongly suggested that information was not being shared.
4.26.2009 10:13am
jukeboxgrad (mail):
mark:

So you don't think that there is anything wrong with the way Ronny Earl operates?


So you don't think there's anything wrong with pretending I said something I didn't say?

thanks for putting my name at the top. I usually scroll over your posts and I would have missed your reply otherwise.


Here's a clue: you're not obliged to read or respond to my posts, even if your name is at the top.

===================
dan:

When you were describing sleep deprivation earlier you described a situation where a person got 10 minutes of sleep after every hour for 49 days. That sounds pretty terrible, but I wouldn't call it torture.


What I described earlier was completely hypothetical, and therefore infinitely less relevant than what's documented in the memos.

And I didn't say the "person got 10 minutes of sleep after every hour." I said you left them alone for 10 minutes. Why did I pick that number? Because I figured even a sleep-deprived person wouldn't really fall asleep in 10 minutes. But that was silly of me, so please strike my example, and assume I said 10 seconds, not 10 minutes. The point of my hypothetical was to describe continuous sleep deprivation. My mistake for picking a number too big (10 minutes).

Being deprived of a significant amount of sleep still has to meet a certain threshold to be considered torture.


Good point. And you expressed your opinion about that threshold: "Keeping someone awake for days on end is mild torture, to the point of extreme if it lasts more than, say, 3 days." 3 days is 72 hours. The CIA limit was 180.

If they rigged him up in such a way that he must stand up so that it is impossible for him to fall asleep for 180 straight hours, sure I'll call that torture


Here's what they did: "they rigged him up in such a way that he must stand up so that it is impossible for him to fall asleep for 180 straight hours." So he was forced to not fall asleep for 180 straight hours, and he was also forced to stand for 180 straight hours. While on a starvation diet. Wearing a diaper.

though looking back calling it extreme after 3 days was lowballing it quite a bit


In other words, now that you found out what they actually did, you're backpedaling because you're sorry you expressed your sincere opinion.

Before you said more than 72 hours was extreme. Now are you going to say that 180 hours is not extreme? Because that's a pretty extreme change in your position.

Either way, you've admitted that the CIA committed torture. You're just trying to change your position about whether or not it was extreme torture.

If a Texas Sheriff in 1983 was prosecuted by the Justice Department for waterboarding, surely there is some crime that the torturers at Waco committed.


Let us know when you find out what it is.

And let us know why you're dodging the questions I asked earlier. Now that you know that the CIA committed torture, what do you think we should do about that?

And assuming, arguendo, that prior crimes (e.g., at Waco) were ignored, why does that mean that this crime should be ignored? Where does that cycle end? Ignored crimes probably go back to roughly the time of Cain.
4.26.2009 10:27am
rosetta's stones:

Andrew J. Lazarus :
"However, my point stands: we have never accepted 'let bygones be bygones' about anybody else's war crimes. Including Henry Wirz."


Your point doesn't stand. We have often accepted others' war crimes... the Sovs certainly, and in fact we let them sit on others' war crimes trials, unbelievably enough.

Then there's Hirohito, who died peacefully in his elder years, rather than from a rope.

Multiple Nazis were permitted to walk, some with light sentences, some with none at all.

No, your point doesn't stand, not at all.
4.26.2009 10:31am
jukeboxgrad (mail):
Assuming, arguendo, that prior crimes (e.g., "multiple Nazis") were ignored, why does that mean that this crime should be ignored?
4.26.2009 10:49am
Dan M.:
jbg, why do you keep repeating yourself when I already said that I'd consider that torture? I had a change of heart and said maybe 72 hours wasn't extreme, but 180 hours is most definitely torture. Sorry if I spoke unclearly, I never meant that being deprived of sleep for 3 days was "extreme torture," but that sleep deprivation after several days was extreme enough to cross the line into definite torture, not extreme torture.

Frankly I don't really care about the torture of Al Qaeda members, but I am concerned about the torture of American citizens whose only crime is killing some ATF agents who barged in uninvited.

If torture was supposed to be reserved for high value targets, and if that was the intent of the administration, then I don't think prosecution of administration officials or the writers of the memos is warranted. If CIA agents were torturing the wrong people, then maybe something needs to happen to them.

I don't really have moral qualms about torture when it's reserved for the right people.
4.26.2009 10:54am
Dan M.:
So did you enjoy the Lon Horiuchi endorsement of HS Precision products or not?
4.26.2009 10:55am
MarkField (mail):

I don't really have moral qualms about torture when it's reserved for the right people.


One of the many problems with torture is that it's rarely reserved for the "right people". Nor is there any general agreement on who the "right people" might be.

Oh yeah-- there's also the problem that it's a categorical moral wrong.
4.26.2009 11:10am
jukeboxgrad (mail):
dan:

I never meant that being deprived of sleep for 3 days was "extreme torture," but that sleep deprivation after several days was extreme enough to cross the line into definite torture, not extreme torture.


This is what you said:

Keeping someone awake for days on end is mild torture, to the point of extreme if it lasts more than, say, 3 days.


That statement is very clear. You said the "the point of extreme" torture is reached "if it [sleep deprivation] lasts more than, say, 3 days." You said very clearly "that sleep deprivation after [3] days was extreme enough to cross the line into … extreme torture." You said very clearly "that being deprived of sleep for 3 days was 'extreme torture.' "

You're pretending to 'clarify' your earlier position, but your earlier position needed no clarification. What happened is you simply changed your mind, and now you're trying to pretend you didn't.

I don't really have moral qualms about torture when it's reserved for the right people.


Trouble is, the statute makes no exception for torturing "the right people." Do you have "moral qualms" about ignoring a clear violation of a federal felony statute? You are obviously free to lobby Congress to add a "right people" exemption to the statute. But Congress hasn't done that yet.

So did you enjoy the Lon Horiuchi endorsement of HS Precision products or not?


I found the white-on-black text too hard to read and lost interest.
4.26.2009 11:13am
drjohn (mail):
How about Obama seeking to question suspects without representation?

How about the release of the Harman NSA wiretap?

How about Obama denying rights to detainees at Bagram?

How about the expansion of rendition?
4.26.2009 11:13am
jukeboxgrad (mail):
And do you really have no concern whatsoever that some future US government might decide a group you are a member of fits their definition of "the right people?"

I guess you have great faith in the ability of government to make such a decision properly. And you like the idea that government has such great power. All signs of a true conservative.
4.26.2009 11:17am
jukeboxgrad (mail):
How about the expansion of rendition?


How about providing citations to support the various claims you're making?
4.26.2009 11:18am
Dan M.:
As I said, I didn't speak clearly, or I misspoke, whatever. I don't think sleep deprivation or waterboarding is "extreme torture."

Ignoring federal statutes? Isn't it called prosecutorial discretion?

By the time the federal government labels the NRA or GOA as terrorist organizations, then it will be a self-fulfilling prophecy. And if I ever take up arms against the federal government, I'd never expect to be treated with kid gloves.
4.26.2009 11:27am
drjohn (mail):
"Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism — aside from Predator missile strikes — for taking suspected terrorists off the street."

http://tinyurl.com/cvowdk
4.26.2009 11:33am
MarkField (mail):

Ignoring federal statutes? Isn't it called prosecutorial discretion?


Not really. Torture is an unusual crime (though not unique), because it applies ONLY to those acting "under color of law". The reason it's worded this way is that the Convention Against Torture, pursuant to which the torture statute was passed, was intended to reach government sponsored torture. Why? Because the international community doesn't worry much about private acts of wrong within a nation; those can and should be handled by the ordinary criminal laws of the nation. Torture is the subject of a Convention precisely because it's often used by governments, thereby making a proper subject for agreement between governments on how to treat it.

In the case of ordinary criminals, prosecutorial discretion works fine. In the case where government is the wrongdoer, though, the people exercising the discretion are all too often the same people who are guilty. That's why the Convention makes it a mandatory duty ("shall") to prosecute torture. We don't want prosecutorial discretion exercised because it would undermine the whole effort to abolish torture.
4.26.2009 12:07pm
jukeboxgrad (mail):
drjohn:

the rendition program might be poised to play an expanded role


Do you understand that rendition and extraordinary rendition are not the same thing? Do you realize the former goes back at least as far as St. Ronnie?
4.26.2009 12:29pm
neurodoc:
Andrew J. Lazarus: Neurodoc, I will concede there is that the Nazis' extermination camps were a higher degree of war crime than our torture of detainees.
You started back at 6:37PM on 4/24 with a hat tip to Godwin's Law. Clearly, you don't understand the implications of Godwin's Law, though, that is why the gratuitous mention of Nazi concentration camps does not help, and often ends, serious conversation.

Nazi extermination camps were the ultimate expression of the Nazi's supremely evil "eugenics" campaign. The camps were not about torturing individuals, they were about wiping out everyone the Nazis deemed "inferior," after squeezing cruel labor out of some before killing them. It is not a "higher degree of war crime" vs a lesser degree of war crime; Auschwitz the former, Guantanamo the latter.
4.26.2009 1:18pm
Mark in Texas (mail):
Mark Field -- Oh yeah-- there's also the problem that it's a categorical moral wrong.

Not according to the Catholic Church: Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity.

http://www.scborromeo.org/ccc/para/2297.htm

The al Qaeda folks who underwent the process that you describe as torture will not have any information obtained used as a confession in a court of law. These procedures were not done to punish them or frighten them. Do you agree that the individuals performing these procedures were acting as professionals in the course of their duty rather than from hatred?

This bit from the Catechism of the Catholic Church would seem to indicate that even if the unpleasantness to which KSM was subjected were torture, it is not a "categorical moral wrong" if it was done strictly to obtain information about al Qaeda activities and the identity and locations of other al Qaeda members.

What is that phrase that is so common in discussions of abortion? It goes something like "Don't try to impose your morality on others."

At this point you can reply with an anti-Catholic rant including the obligatory joke about pedophile priests.
4.26.2009 3:03pm
Mark in Texas (mail):
To be more specific that sentence should have read :

Do you agree that the individuals performing these procedures were acting as professionals in the course of their duty as they saw it rather than from hatred?

Obviously, there are a lot of people posting here who do not believe that they were doing their duty as it should have been done if they had gotten a legal opinion from the right lawyers rather than relying on a legal opinion from the lawyers who are now contemplating a starring role in a political show trial.
4.26.2009 3:11pm
MarkField (mail):

At this point you can reply with an anti-Catholic rant including the obligatory joke about pedophile priests.


I don't need moral lessons on torture from the institution which brought us the Inquisition.


Do you agree that the individuals performing these procedures were acting as professionals in the course of their duty rather than from hatred?


While I don't actually know (nor does anyone else), I suspect that some form of hatred was involved. I find it hard to believe that anyone could treat a fellow human being in such a fashion without some emotion related to hatred.


What is that phrase that is so common in discussions of abortion? It goes something like "Don't try to impose your morality on others."


Nobody has to accept my morality. They just have to abide by the law.
4.26.2009 3:11pm
jukeboxgrad (mail):
mark:

The al Qaeda folks who underwent the process that you describe as torture will not have any information obtained used as a confession in a court of law.


It's hard to tell what's greater, your immorality or your ignorance. You're citing the Church in defense of torture, because the Church implicitly condones certain instances of torture. But even the Church says torture is wrong if it's done to "extract confessions." You ignore this, because you're ignorantly assuming that we didn't do this. Trouble is, we did.

In the instance of al-Libi (link, link), the torture stopped when he gave us the false confessions we were looking for. And then Bush used those false confessions to help sell the war. So, as always in history, one of the key reasons for torture is to produce false confessions that have political utility.

So even your beloved Church, which condones certain instances of torture, has to condemn this instance of torture.

And note that the Church condemns torture to "extract confessions." We did something worse than that: we used torture to extract false confessions.

the unpleasantness to which KSM was subjected


If some future enemy waterboarded an American soldier 183 times, using exactly the same procedure we did, would you refrain from calling that torture? Would you call it "enhanced interrogation?" Or would you call it "unpleasantness?"

Do you agree that the individuals performing these procedures were acting as professionals in the course of their duty as they saw it rather than from hatred?


Tell it to the judge. 'I sincerely believed I had to commit war crimes in order to defend my country' is not a valid defense for war crimes. History has seen plenty of war criminals who say, very convincingly, that they had no hatred for their victims, but were merely "acting as professionals in the course of their duty as they saw it."

And the federal anti-torture statute has no exception for torturers who are "acting as professionals in the course of their duty as they saw it." The statute does not apply only to torturers who are motivated by hatred.

the lawyers who are now contemplating a starring role in a political show trial


I don't know why people keep bringing up Ken Starr.
4.26.2009 4:27pm
jukeboxgrad (mail):
Oy, two marks. I was obviously addressing the one in texas, not the one in the field.
4.26.2009 4:28pm
John Moore (www):

we have never accepted 'let bygones be bygones' about anybody else's war crimes.

North Vietnam?

I guess that wasn't torture.
4.26.2009 5:14pm
John Moore (www):
Mattski (re Waco):

I think that's a good example of a question that hinges on how much information the people at the top had. And were the (rogue) elements on the ground sharing information all the way up the chain of command. The movie strongly suggested that information was not being shared.

Please. I remember thinking, at the time, from my non-official sources (CNN), that the tactics being used were exactly the wrong ones for the situation. When you have a religious cult, playing weird music at high levels is hardly a way to convince them to give in to you and more likely to convince them you are the devil. The other tactics, likewise, were stupid given the way cults work.

This was obvious from watching TV, so the uppers should have known about it.
4.26.2009 5:23pm
John Moore (www):
MarkField:

In the case of ordinary criminals, prosecutorial discretion works fine. In the case where government is the wrongdoer, though, the people exercising the discretion are all too often the same people who are guilty. That's why the Convention makes it a mandatory duty ("shall") to prosecute torture. We don't want prosecutorial discretion exercised because it would undermine the whole effort to abolish torture.

Horse-feathers. The prosecutors obviously have discretion about deciding whether a particular circumstance is clearly enough torture.

Otherwise, I can allege that the IRS is torturing me and prosecutors would have to take it to court.
4.26.2009 5:24pm
mattski:

This was obvious from watching TV, so the uppers should have known about it.

'Waco: Rules of Engagement'

It's a good film, John, I recommend you watch it.
4.26.2009 6:09pm
MarkField (mail):

The prosecutors obviously have discretion about deciding whether a particular circumstance is clearly enough torture.

Otherwise, I can allege that the IRS is torturing me and prosecutors would have to take it to court.


Nobody has to investigate frivolous allegations, just substantial ones. If the IRS did torture you, I'd expect the Justice Department to investigate.

Of course, by the logic of the torture advocates here, it could then decide not to prosecute on the ground that (a) you aren't a good person and deserved it; or (b) that the torture gained information regarding tax evasion, so was justified. And you'd be ok with that.
4.26.2009 7:11pm
John Moore (www):
Of course, by the logic of the torture advocates here, it could then decide not to prosecute on the ground that it (a) you aren't a good person and deserved it; or (b) that the torture gained information regarding tax evasion, so was justified would harm national security and the nation's political cohesion, and the "torture" didn't rise to levels appropriate to prosecute.

Fixed
4.26.2009 8:28pm
John Moore (www):
Mattsi:


'Waco: Rules of Engagement'

It's a good film, John, I recommend you watch it.

Got a summary?
4.26.2009 9:41pm
jukeboxgrad (mail):
moore:

The prosecutors obviously have discretion about deciding whether a particular circumstance is clearly enough torture


Tell us how imaginative a prosecutor would have to be to explain why it's called torture when the Japanese did it, but not when we did it. That prosecutor would have to have more imagination than you, because it's something you've never explained. Just one of many questions you prefer to duck.

Otherwise, I can allege that the IRS is torturing me and prosecutors would have to take it to court.


Have you ever even bothered to read the statute? You would also have to allege that you were being held in their custody outside the US. Otherwise, USC 2340 would not apply.

It would also help a lot if you had a signed confession from the IRS, where they go into detail describing their exact waterboarding procedure. And if you had that document (which obviously exists in the form of the OLC torture memos), only a highly corrupt prosecutor would refrain from prosecuting.

would harm national security and the nation's political cohesion


Please point out the part of USC 2340 that stipulates an exception in circumstances regarding "national security and the nation's political cohesion." By the way, is there any law the government should not be able to ignore simply by making vague claims about "national security and the nation's political cohesion?"

and the "torture" didn't rise to levels appropriate to prosecute


Please explain how the "levels appropriate to prosecute" magically changed since the time when the Japanese did the same thing.
4.26.2009 11:27pm
John Moore (www):


would harm national security and the nation's political cohesion





Please point out the part of USC 2340 that stipulates an exception in circumstances regarding "national security and the nation's political cohesion." By the way, is there any law the government should not be able to ignore simply by making vague claims about "national security and the nation's political cohesion?"

That is eerily legalistic... what ivory tower do u live in?

Please explain how the "levels appropriate to prosecute" magically changed since the time when the Japanese did the same thing.


Does that constitute legal precedent? Did the Japanese stop with waterboarding where no water was intended to enter the lungs?
4.27.2009 1:00am
John Moore (www):

Saying that Al Qaeda has done worse than that is a) not true, and b) irrelevant. This isn't a binary question; you aren't either pure or a Nazi.

It is most certainly true. Those commandos didn't cut peoples' heads off. They were just soldiers.


There's a lot of room in the continuum of heinousness.

There's a lot of room in the continuum of treatment of interrogatees. Many here draw a clear (to them), very sharp (i.e. arbitrary) line at water-boarding.

Again, go ahead and execute worthy criminals IF you can convict them. Torture is not an option; we can disagree on the ethics but the law is clear.

The law is clear once you agree on the definition of torture.

But I do disagree, and furthermore also disagree on the ethics, which is the heart of my objection to this insanity. Oh, and I also strongly suspect that the motivation for the release of the OLC memos was to appease the slavering BDS left wing of Obama's party, at the expense of national security.
4.27.2009 1:34am
jukeboxgrad (mail):
moore:

That is eerily legalistic


Obeying the law is "eerily legalistic?" Why do you hate democracy?

Does that constitute legal precedent?


Yes, our prosecution of the Japanese constitutes "legal precedent." And why would someone like you care about "legal precedent," anyway? I thought it's "eerily legalistic" to expect the law to be obeyed. Why are you being "eerily legalistic?"

Did the Japanese stop with waterboarding where no water was intended to enter the lungs?


What is your basis for suggesting that we didn't intend water to enter the lungs? I addressed that baloney here. We knew water was accumulating in the "mouth and nasal cavity." What magical force was keeping it out of the lungs?

There is no meaningful difference between what the Japanese did and what we did. Why is it torture when they do it, but not when we do it?
4.27.2009 2:03am
Dan M.:
It's torture because they did it to us.
4.27.2009 2:14am
jukeboxgrad (mail):
It's hard to tell if you're being serious. So the same act is torture if they do it, but not if we do it?
4.27.2009 2:20am
jukeboxgrad (mail):
And earlier you admitted that we tortured via sleep deprivation. Why is it OK with you that we broke the law? And what do you think happens to democracy when the government is no longer required to follow the law?
4.27.2009 2:24am
Dan M.:
I think intelligence agencies should be authorized to use some forms of torture on terrorists if they must do so to get vital information. I'd authorize the torture of any confirmed murderer (Richard Poplawski, for example) in a heartbeat if I had very good reason to believe he could give me information to track other killers.

If the CIA manipulated the administration to get broader authority to torture potentially innocent people, then that's something that should be investigated. If the administration had substantial reasons to doubt the information being provided by the CIA regarding how guilty these people were, then maybe that should be investigated.

So, I don't think authorizing the torture of known terrorists should be a crime, so therefore that shouldn't be prosecuted. Authorizing the torture of "suspected" terrorists would be a heinous crime and, sure, I'd support in depth investigations and possibly prosecutions over the matter.

I'm not going to cry my eyes out if there's a jagged broomstick in Richard Poplawski's ass, though, even if he doesn't have information.
4.27.2009 2:57am
John Moore (www):

So, I don't think authorizing the torture of known terrorists should be a crime, so therefore that shouldn't be prosecuted.

These folks aren't going after who authorized the procedures (President) because they know the political will isn't there.

Rather, they want to... can you believe this... prosecute the attorneys who offered their opinions that the interrogation techniques were legal. And most of those advocating this are lawyers!

Next thing you know, the sun will rise in the west.

It is truly amazing.
4.27.2009 3:15am
Dan M.:
And I'll also say that, no, we should not have prosecuted the Japanese torturers. We murdered hundreds of thousands of Japanese civilians in an act of terrorism to stop the war, and then we prosecute Japanese soldiers who tried to extract information that maybe could have prevented them from having atomic bombs dropped on them?

We kick their asses, we murdered hundreds of thousands of their civilians, and since we won we got to further shame them for using "unethical" practices to help them win the war. It's kind of absurd.
4.27.2009 4:48am
Dan M.:
Or, rather, I'll say that we had no moral authority to prosecute and execute them for torture. But we won so we were allowed to make the rules.
4.27.2009 4:59am
rosetta's stones:

Dan M.:Or, rather, I'll say that we had no moral authority to prosecute and execute them for torture. But we won so we were allowed to make the rules.



Pretty much.

That's what puts the lie to the moral preening we see in some, concerning these coercive interrogations.

The shameless certitude being exhibited, in the face of the mass deaths countenanced in other situations including today's bombings, is just pure hypocrisy.

There's a good argument to be made against these interrogations, and it is mostly grounded in morals, but you can't make it from a position of shameless moral certitude.
4.27.2009 8:17am
Mark in Texas (mail):
Mark Field -- I don't need moral lessons on torture from the institution which brought us the Inquisition.

Thank you for being so predictable.

Mark Field -- Nobody has to accept my morality.

Is this inconsistent with your previous statement:

Mark Field -- Oh yeah-- there's also the problem that it's a categorical moral wrong.

Or was that just gratuitous preening on your part because I thought that you were trying to get us to accept your morality. Could you please clear that matter up for us?
4.27.2009 9:25am
neurodoc:
When Wayne Jarvis suggested, tongue-in-cheek I'm sure, that someone(s) should be prosecuted for the "murder" of those 3 "misguided teenagers" who took hostage the ship's captain, I thought it a self-evidently laughable notion. But it seems it isn't so to some. And pirates and terrorists do have their advocates in the West. If you doubt this, have a look at what Johann Hari, a columnist with The Independent (not my favorite newspaper), had to say on behalf of Somali pirates in a HuffPo piece. (Any credibility at all to his claim of 300 dead from radiation poisoning?)

http://www.huffingtonpost.com/johann-hari/
you-are-being-lied-to-abo_b_155147.html

[PS: Can anyone tell me why I can't create links here? I have no problem with the bold, italics, strike or block quote functions, but have never been able to create a link. What looked like it worked from "previewing" my comment, then didn't post as a link.]
4.27.2009 2:22pm
neurodoc:
There have been two memes in this thread that I take exception to, those being Andrew J. Lazarus's conflation of Nazi extermination camps with Guantanamo or Abu Ghareb and the Cheney-is-a-coward one introduced and championed by Just an Observer. I'm satisfied with what I have said in respone to the misguided and fundamentally obscene Nazi (which surprisingly jukeboxgrad gave a nod to), but perhaps a word or two more about the "coward" business.

Mine is not an affirmative case on behalf of Cheney's courage. I have no evidence to adduce for that, and have already acknowledge his own war record, or lack thereof. Instead, the point I would make is that courage or lack thereof is of so little, if any, relevance to what Cheney did or didn't do or might do know. What steps has he taken to distance himself from responsibility for "harsh interrogations," any? He hasn't said, has he, anything like, "Gee, I didn't know stuff like that was going on. If we had known, we would have put an immediate stop to it."? Or, "The lawyers convinced me with their legal arguments that this was OK." To the contrary, he isn't disavowing it. (If "courage" pertains here, then how courageous was William Jefferson Clinton, another Vietnam War draft dodger, when he denied his own flagrant misconduct?)

Anyone's free to dislike, even hate, Cheney for whatever reason(s). And they're free to vituperate against them as much as they care to. But like the Nazi meme, though not nearly so much, is a distraction from serious conversation. (BTW, if JFK, or was it Ted Sorenson, was writing a Profiles in Courage - Part II today, who on the contemporary scene would be candidates for inclusion?)
4.27.2009 3:00pm
MarkField (mail):

BTW, if JFK, or was it Ted Sorenson, was writing a Profiles in Courage - Part II today, who on the contemporary scene would be candidates for inclusion?


Russ Feingold maybe, for being the lone vote against the Patriot Act.
4.27.2009 3:43pm
AlanDownunder (mail):

but the interpretation may not involve a greater stretch than would be required to hypothesize the convictions of Bush, Cheney, Rumsfeld, their attorneys, CIA officers, and so on



a great way to filter out sane comment
4.27.2009 7:49pm
AlanDownunder (mail):
Here's slightly "greater stretch than would be required to hypothesize the convictions of Bush, Cheney, Rumsfeld, their attorneys, CIA officers, and so on"

Obama's ruling out of torture prosecutions at levels lower than Yoo/Addison and higher than England/Graner, if effective to nobble Holder, is political interference in the criminal justice system which operates under statutory requirement to investigate those instances of torture.
4.27.2009 7:55pm
neurodoc:
neurodoc: BTW, if JFK, or was it Ted Sorenson, was writing a Profiles in Courage - Part II today, who on the contemporary scene would be candidates for inclusion?
MarkField: Russ Feingold maybe, for being the lone vote against the Patriot Act.
So, do you think Jeannette Rankin who was one of 50 US Representatives to vote against our entry into WWI and the lone opposition (288 to 1) to our entry into WWII was also a good candidate for inclusion in a Profiles in Courage - Part II? Representative Barbra Lee, too, who was the lone vote against 420 of her colleagues in 2001 to authorize the president to respond to the terrorist attacks on us because she didn't want to see the madness escalated?

I don't think being determinedly wrong should qualify them for inclusion in such a book. (And no, I wouldn't nominate Dick Cheney for inclusion either, though he's surely sticking with his convictions, too.)
4.27.2009 8:21pm
MarkField (mail):

I don't think being determinedly wrong should qualify them for inclusion in such a book.


Thanks -- I've been blanking on the name Jeanette Rankin and it's been bugging me.

My understanding of Kennedy's book was that he did include people who were on the wrong side of history (as we might say). He was honoring those whose stands cost them their political career (or might have done so) even if they were wrong. Given the politics of the time, I'd say Feingold fits that category.

There's some level of being wrong which probably shouldn't be honored, but Feingold's hardly reaches that level (and that assumes he was wrong at all).

Cheney wouldn't qualify because he's not at risk of losing any political career.
4.27.2009 10:16pm
neurodoc:
Oops, Rankin voted "no" to going to war against Japan after Pearl Harbor, while 388 (not 288) other members of the House voted "yes."
4.28.2009 1:07am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.