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.

Wiretap act violations?

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

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.

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.

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,

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,

how about the intentional denial of habeas to Bagram inmates without even the cover the Bush DOJ had of it being unlitigated territory?

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.

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.

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.

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?

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.

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?

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.)

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...

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.

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.

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.

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.

[Good lord, A.S. listen to yourself! Please tell me you are trying to do some sort of meta-ironic strawman?]

"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.

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.

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.]

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.

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.

To which post do you refer, Sarcastro?

Yes.

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...

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.

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".

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,

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.

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.

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.

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,

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.

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.

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.

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

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?

PC: You overstate your case, badly. That the military and the FBI had further restrictions on interrogation methods is not a definition of "torture".

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.

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.

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,

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?

"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?

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!

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,

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.

I think we should prosecute Kopel for this inane thread.

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?

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.

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.

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

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!"

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.

How can anyone be stupid enough not to distinguish VOLUNTARY waterboarding ("SERE training") from INVOLUNTARY waterboarding ("torture")?

Is anyone that stupid?

Apparently so.

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.

"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?

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.

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.

Oh no, not the caterpillar!

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.

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.

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.

Seriously?!

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

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!!!"

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

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.)

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.

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?

Is threatening someone with a caterpillar illegal, or just immoral?

Best,
Moneyrunner

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.]

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.

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.

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.

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.

"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.)

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

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.

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?

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

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.

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.

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.

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.)

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?

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.

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.

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.

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?

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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!

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.

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.

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.

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.

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.

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.:)

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.

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.

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.

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.

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

"Anyone who sets out to copy the Nazis can invoke Godwin's Law as a shield."

You don't say.

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?

Cheney is now hiding behind his daughter. "Torture is ok because my dad says so". That is pretty low.

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.

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.

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.

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.

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!

@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

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.

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.

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!

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.

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.)

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."

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."

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.

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.

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.

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.

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.

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.

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.

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...

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?

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).

Post in haste, regret at leisure: that should read, "whose minds aren't already made up..."

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!"

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

I think that's rather cold comfort.

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.

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

"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.

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?

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.

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.)

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.

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!

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!

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.

Yes, as previously noted, you're trolling.

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.

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.

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.

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.

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 .

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.

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.

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.

(Ach, "reassessment," not "reevaluation.")

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.

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?

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?

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.

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?

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.

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.

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?

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.

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.

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.

Assuming, arguendo, that prior crimes (e.g., "multiple Nazis") were ignored, why does that mean that this crime should be ignored?

So did you enjoy the Lon Horiuchi endorsement of HS Precision products or not?

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.

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.

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.

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.

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.

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.

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.

we have never accepted 'let bygones be bygones' about anybody else's war crimes.

North Vietnam?

I guess that wasn't torture.

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.

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.

Mattsi:

'Waco: Rules of Engagement'

It's a good film, John, I recommend you watch it.

Got a summary?

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?

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?

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?

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.

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.

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.

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.]

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.

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.

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.