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Ireland v. United Kingdom and the prosecution of Bush officials:

In all the chatter that has gone on regarding demands for prosecution of Bush administration officials under the federal torture statute, remarkably little attention has been paid to the case of Ireland v. United Kingdom--even though that case is discussed extensively in the August 1, 2002, Bybee memorandum which has been the subject of the such great controversy.

Although the memorandum has been criticized on other grounds (such as its facile assertions regarding presidential war powers), it cannot be criticized regarding its accurate presentation regarding Ireland v. United Kingdom.

That case arose from the UK's use of "the five techniques" in interrogation of suspected IRA terrorists. The techniques were: wall-standing in a "stress position"; hooding; subjection to noise; sleep deprivation; and food and drink deprivation. In other words, quite similar to many of the techniques used by the CIA to interrogate captured terrorists.

The Grand Chamber of the European Court of Human Rights ruled that these techniques do not constitute "torture." For "although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood." (Para. 168.) Instead, "recourse to the five techniques amounted to a practice of inhuman and degrading treatment." Accordingly, since Article 3 of the European Convention on Human Rights outlaws inhuman and degrading treatment, the Court ordered the U.K. to cease use of the five techniques.

Now, if you are a Department of Justice attorney analyzing the question of whether you can bring a case which will result in a conviction under the federal torture statute, you have to acknowledge numerous obstacles:

Although the Convention Against Torture, which has been ratified by the U.S. Senate, forbids both torture and "Other Cruel, Inhuman or Degrading Treatment," that treaty is implemented in U.S. domestic law by the federal torture statute, which outlaws only torture.

People can make all kinds of pro/con arguments about whether waterboarding is basically similar to the five techniques, or if it constitutes torture. According to the Rule of Lenity, ambiguous criminal statutes are supposed to be construed in favor of the defendant.

Now, if people want to argue that degrading treatment of captured terrorists violates some other federal law, maybe there is a case that can be made. It just strikes me as highly unlikely that a conviction could be obtained under the federal torture statute.

Not to mention whether the defendants could raise the justification of necessity. As the Bybee memo points out, the Torture Convention excludes any justifications, but the federal torture statute does not exclude justifications or excuses. My tentative view (not based on extensive research) is that Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.

Of course if you want to invent your own set of facts--such as the assertion that Khalid Sheikh Mohammed was waterboarded for the purpose of obtaining statements which the interrogators knew would be false, but which would be used to support the Iraq War--then a necessity defense would not apply. A prosecutor relying on such a theory would presumably want to stack the jury with the self-deluded American idiots [1/6 of the population according to one poll], who believe that the U.S. government perpetrated 9/11 with explosives.

John Podesta's "impeach Bybee letter" appears to be unsupported on a crucial legal point:

A legal memorandum signed by Judge Bybee when he was the head of the Office of Legal Counsel and recently released by the Obama administration approved the use of cruel, inhuman, and degrading techniques, including waterboarding, slamming a detainee into a wall, depriving a detainee of sleep for up to eleven days at a time, and trapping a prisoner in a "confinement box" with insects in order to induce terror. The techniques endorsed by Judge Bybee's memoranda violated U.S. law and our commitments under the United Nations Convention Against Torture.
It can certainly be argued that approval of the degrading techniques violated "our commitments under the Convention Against Torture." But as for the claim that the techniques "violated U.S. law," Podesta does not specify which particular law; if he's referring to the federal torture statute, his assertion that there was definitely a violation seems overstated. (Since the CAT is a ratified treaty, it can be called "U.S. law," but Podesta's phrasing seems to indicate that he is talking about something in addition to CAT itself.)

A conscientious DOJ attorney who is contemplating the possibility of a successful prosecution under the federal torture statute will undoubtedly be aware of the talking point that the Americans executed Japanese war criminals for waterboarding. Mark Hemingway has written on this topic at National Review Online. For the moment, let's put aside any factual differences in how the waterboarding was done by the Japanese and the Americans. If you follow Hemingway's links for the war criminals who were executed, and then click the "legal procedure" tab, you can find the particular crimes for which they were convicted. Some of them were convicted of crimes related to mistreatment of prisoners of war. But these convictions are for violating the laws of war. Under the laws of war, prisoners of war are not supposed to be subject to degrading treatment (e.g., wall-standing, noise) nor to torture. Accordingly, the convictions for the seven executed Japanese do not imply a legal determination that waterboarding by the Japanese constituted torture, as opposed to degrading and inhuman treatment.

If you want to make a case that it is a crime under federal law not to treat al Qaeda terrorists as lawful prisoners of war (which means that they are not even supposed to be interrogated against their will), go ahead and try. But that's going to involve a different statute (if you can find one) from the federal torture statute.

Over at the excellent international law weblog Opinio Juris, Australian law professor Kevin John Heller insists that prosecution of Bush officials would be straightforward and obvious. I suggest that it would be much much more difficult than the prosecution enthusiasts seem to admit to themselves.

It is sometimes claimed that under the CAT, prosecution is mandatory. But Article 7 of CAT states that after a referral of a matter to the prosecuting authority, "These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State." Which means, in the context of the United States, that the prosecuting authority have essentially limitless discretion not to bring a case, and that discretion certainly includes choosing not to prosecute a case because of the daunting odds of obtaining a conviction.

In support of prosecuting Judge Bybee and other lawyers, Heller pens an interesting post about the Ministries case; in that case, some high-ranking German lawyers were successfully prosecuted for having approved the deportation of French Jews; the lawyers did not contest the allegation that they knew the deportations to be flagrantly illegal. To Heller, prosecuting the American lawyers is even easier than prosecuting the Nazi ones, "because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime."

Well, sure, if you think that you can prove that the American lawyers did not actually believe their own arguments. But the Ministries Case depended on the defendants not contesting the point that they knew the deporations were illegal; if the American lawyers sincerely believed in the legal reasoning which they offered (even if that legal reasoning was poor quality, foolish, or incompetent), then we have an entirely different situation. Hardly an easy case in which to secure a conviction beyond a reasonable doubt.

Related Posts (on one page):

  1. More Thoughts on the Legal Barriers to a Torture Prosecution:
  2. Ireland v. United Kingdom and the prosecution of Bush officials:
PC:
Prof. Kopel, should we defer to international law when our own State Department lists two of those five techniques as torture when the standard is applied to another country?


[DK: Certainly not "defer" in the sense that an American court should consider the interpretation as binding. Nor, for that matter, is a U.S. State Department's practice binding on a court. If a court wants to say "We consider U.S. State Department practices to be far more persuasive than an ECHR decision as to how the term is understand in an American legal context," that's certainly the court's prerogative. But that's more relevant when KSM files a tort suit against President Bush for violating KSM's civil rights. However, in a criminal case, the Rule of Lenity is supposed to be applied; in a criminal prosecution, Ireland v. U.K. would create at least enough ambiguity to make a criminal conviction difficult.]
4.27.2009 2:59pm
ERH:
Suddenly Kopel comes around to looking at foreign precedents. Amazing!
4.27.2009 3:05pm
dmv (mail):
One argument that there was torture by the U.S. is that the different techniques used in combination constituted torture, where individually they may not have. We know, just as a factual matter, that they were used in combination, over extended periods of time.

Incidentally, this:


People can make all kinds of pro/con arguments about whether waterboarding is basically similar to the five techniques, or if it constitutes torture. According to the Rule of Lenity, ambiguous criminal statutes are supposed to be construed in favor of the defendant.


Smacks of the very same pathetic kinds of "arguments" and "analysis" OLC conducted under Bybee and Yoo. I was astonished that Kopel just blandly asserts that and moves right along.

Pathetic.
4.27.2009 3:09pm
Rock On:
I also think the statement "[p]eople can make all kinds of pro/con arguments about whether waterboarding is basically similar to the five techniques, or if it constitutes torture" is a pretty ridiculous sleight of hand. People can argue anything. But in most places, under most circumstances (including US history!), waterboarding has been understood to cross the line.
4.27.2009 3:11pm
Rock On:
Beaten to it. Oh well.
4.27.2009 3:11pm
rosetta's stones:

That case arose from the UK's use of "the five techniques" in interrogation of suspected IRA terrorists. The techniques were: wall-standing in a "stress position"; hooding; subjection to noise; sleep deprivation; and food and drink deprivation.



Good Gaia, man. They were Irish. How else did you expect to keep them in line?! ;-)
4.27.2009 3:13pm
PC:
Good Gaia, man. They were Irish. How else did you expect to keep them in line?! ;-)

Feed them English food?
4.27.2009 3:19pm
John Moore (www):
I just can't wait for JukeBoxGrad's comeback to this, since it destroys mos of his talking points.
4.27.2009 3:20pm
Gabriel McCall (mail):

According to the Rule of Lenity, ambiguous criminal statutes are supposed to be construed in favor of the defendant.



Applying this rule towards government entities as defendants is a perversion of the rule's intent, which results in the reverse of the rule's intended practical effect.

When there is legitimate uncertainty as to whether an interrogation technique is torture or not, the same ethical principle which underlies the Rule of Lenity requires that the government NOT use that technique.
4.27.2009 3:20pm
Andrew J. Lazarus (mail):
Prof. Kopel, you will note that the five techniques exclude a number of those approved by the OLC (e.g., waterboarding). In the case of sleep deprivation, moreover, my quick reading of your link makes clear that the maximum duration imposed by the British was much less than that authorized by OLC. (It appears that none of the complainants stated that any of the techniques were used for more than four or five days.)

There is a desperate mix-and-match going on here to try to hide the depravity of our own conduct. For example, we hear a lot about how our use of a cloth differentiates our water torture from Japanese water torture. Except when it doesn't.
A towel was fixed under the chin and down over the face. Then many buckets of water were poured into the towel so that the water gradually reached the mouth and rising further eventually also the nostrils, which resulted in his becoming unconscious and collapsing like a person drowned. This procedure was sometimes repeated 5-6 times in succession.
Or the National Review talks about the Japanese who were sentenced to death for offenses of which waterboarding was only a fraction, but omit cases of lesser fry who received mere prison sentences their behavior. Here is a sample from a charge sheet.
Specification 5. That on or about 15 May, 1944, at Fukoka Prisoner of War Branch Camp Number Three, Fukuoka ken, Kyushu, Japan, the accused Seitaro Hata, did, willfully and unlawfully, brutally mistreat and torture Thomas B. Armitage, William O Cash and Munroe Dave Woodall, American Prisoners of War by beating and kicking them; by forcing water into their mouths and noses; and by pressing lighted cigarettes against their bodies.
On my reading, the "and" means that all of these specific actions are both brutal mistreatment and torture. Are you trying to argue that the lighted cigs were torture but the beating and waterboarding were mere brutal mistreatment? Good luck with that; I don't buy it. The defendants in this case were not hanged, merely imprisoned, so National Review conveniently (cough!) skipped over them.

I suppose it would be crass to ask, but would you care to excuse the Nuremberg Defendants on the grounds of Necessity in saving Europe from JudeoBolshevism? Or does the Principle of Lenity apply only to American misdeeds. Never mind, I can guess your answer to that.


[DK: The Rule of Lenity is a rule of statutory construction; it's got nothing to do with the existence of a Necessity defense, or whether that defense is applicable in a particular case. The Hata case would be a good one for a prosecutor to cite; it is, however, a case in which there no legal issue regarding the difference between torture and mistreatment, so as a precedent for whether something falls on one side of the line or the other, cases in which the court did have to make a legal distinction between torture and mistreatment would probably be more persuasive.]
4.27.2009 3:21pm
Frog Leg (mail):

Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.



[DK: The Due Process clause, I would argue, which includes many traditional protections of the A-A legal system. Plus, as DC v. Heller teaches, the Second Amendment protects a right of self-defense. I haven't researched the topic of a constitutional necessity defense in depth, but Bybee's assertion of a potential defense of necessity strikes me as at least plausible.]

And what provision of the Constitution would require this result? Or does this require penumbras?
4.27.2009 3:21pm
Richard Aubrey (mail):
Good article on Patterico about the "timeline" and related matters. Lots of links.
4.27.2009 3:22pm
rosetta's stones:
Feed them English food?

You savage brute... you diabolical fiend. Not even evil Cheney could have conceived such deviltry.
4.27.2009 3:26pm
Erik Siegrist (mail) (www):
Prof. Kopel, thank you for providing a good demonstration of why Justice Bybee should be impeached.

Aside from the partisan diversion with the comparison of 9/11 conspiracy theorists to those who think water boarding might have been employed in an attempt to produce false intel linking Saddam and al Qaeda, this blog post does a better job of accomplishing what the OLC memos failed so miserably at -- summarizing the relevant case law.

Interpreting why certain precedents may not apply to the current situation is a far cry from just ignoring them completely.
4.27.2009 3:26pm
alkali (mail):
I would note that the rule of lenity and the standard of conviction beyond a reasonable doubt do not necessarily apply in impeachment proceedings.

That is not to say that a Senator sitting in an impeachment proceeding couldn't or shouldn't choose to apply the rule of lenity or the "reasanable doubt" standard, but simply that nothing mandates their use.`

Accordingly, the fact that it might be difficult to convict Judge Bybee of a crime in federal court because of those concepts does not preclude his being impeached for the same underlying behavior.
4.27.2009 3:37pm
martinned (mail) (www):
While I would certainly encourage American jurists to take note of ECHR case law more often, I just have one question: What about US case law?
4.27.2009 3:38pm
Gilbert (mail):

If you want to make a case that it is a crime under federal law not to treat al Qaeda terrorists as lawful prisoners of war (which means that they are not even supposed to be interrogated against their will), go ahead and try. But that's going to involve a different statute (if you can find one) from the federal torture statute.


The UCMJ incorporates Geneva.


@dmv

One argument that there was torture by the U.S. is that the different techniques used in combination constituted torture, where individually they may not have.


Ireland v. UK expressly considers the actions in that case together as a program.
4.27.2009 3:45pm
Bored Lawyer:

Applying this rule towards government entities as defendants is a perversion of the rule's intent, which results in the reverse of the rule's intended practical effect.

When there is legitimate uncertainty as to whether an interrogation technique is torture or not, the same ethical principle which underlies the Rule of Lenity requires that the government NOT use that technique


1. What is being proposed is criminal prosecution of individuals, not "governmental entities."

2. Do you have any authority for your distinction?

3. The rule of lenity, as I understand it, is based on the notion that the defendant should receive fair notice of what is or is not punishable as a crime. If a criminal statute is ambiguous, we construe it narrowly to give the defendant the benefit of such ambiguity -- otherwise he would not receive fair notice.

Why should the reverse apply to governmental entities?
4.27.2009 3:49pm
AnderJ (mail):
First of all, I say the ECHR was wrong in saying it was not torture. Secondly, the ECHR was not confronted with waterboarding. And thirdly, I like this kind of debates where the strict literalists end up support looking at foreign cases while the contextualist say that we should not!
4.27.2009 3:58pm
Lucius Cornelius:
Heaven help us. Kopel committed the ultimate sin of using logic and reasoning in discussing this issue.

As I see it, there are three levels of conduct at issue: (1) conduct that most everyone would agree is torture; (2) conduct that most everyone would agree is not torture; and (3) conduct where reasonable minds differ.

Much of what is considered "torture" by some of the writers here would not be considered "torture" in much of the world.

I get the sense that some of the writers in these discussions hate the US. I believe in "American exceptionalism." I believe that the US has been a force for good in the world. I believe that, inspite of our flaws and imperfections, we are a model for the rest of the world. Some of you seem to demand perfection and seem unwilling to settle for anything less.

As for the international law, how much of that was agreed to by countries that have no intention of following it. Instead, they want it as strict as possible so that the US and the handful of other countries that take it seriously will be constained. They can torture all they want and no one will pay attention. The US engages in coercive interrogations and they cry foul.
4.27.2009 4:05pm
zuch (mail) (www):
Prof. Kopel:

Not to mention whether the defendants could raise the justification of necessity.
OK. Cite me one domestic case where abuse of arrestees/prisoners/detainees has been justified by "necessity".

Cheers,
4.27.2009 4:07pm
Oren:

According to the Rule of Lenity, ambiguous criminal statutes are supposed to be construed in favor of the defendant.

Applying this rule towards government entities as defendants is a perversion of the rule's intent, which results in the reverse of the rule's intended practical effect.


Except that what is considered is a prosecution of individuals, not of offices. A CIA interrogator is not a government institution.

The Rule of Lenity (as I see it) is the criminal analog of contra pref. -- it serves to force the writers of criminal law to be as precise as possible. The interrogators are not members of Congress and had no say in the drafting of the law and are therefore entitled to the benefit of ambiguities.
4.27.2009 4:08pm
My Middle Name Is Ralph:

People can make all kinds of pro/con arguments about whether waterboarding is basically similar to the five techniques, or if it constitutes torture.


Are you seriously suggesting that Ireland v. UK has any relevance to whether waterboarding (a technique not at issue in the case) is torture? That's the dumbest thing I've yet read on VC. Any first year law student would be laughed out of class for making such an argument.
4.27.2009 4:09pm
zuch (mail) (www):
Prof. Kopel:
Of course if you want to invent your own set of facts--such as the assertion that Khalid Sheikh Mohammed was waterboarded for the purpose of obtaining statements which the interrogators knew would be false, but which would be used to support the Iraq War--then a necessity defense would not apply. A prosecutor relying on such a theory would presumably want to stack the jury with the self-deluded American idiots [1/6 of the population according to one poll], who believe that the U.S. government perpetrated 9/11 with explosives.
???HUH??? What does the "9/11 truther" movement have to do with the fraudulent claim (and "justification") that Iraq was behind 9/11?

Cheers,
4.27.2009 4:11pm
Eric Rasmusen (mail) (www):
Very nice post. I've been looking for discussion of the legal meaning of "torture". Liberals are showing in this discussion that: 1. They don't care a bit what the law actually says-- if they think somebody did something immoral, that person should be imprisoned, and 2. They have no ability to see that any honest man, let alone the average man, might disagree with them about what a word such as "torture" means.
4.27.2009 4:19pm
Oren:

... if the American lawyers sincerely believed in the legal reasoning which they offered (even if that legal reasoning was poor quality, foolish, or incompetent), then we have an entirely different situation. Hardly an easy case in which to secure a conviction beyond a reasonable doubt.

Why a subjective test and not a reasonable person (lawyer) test: "if a reasonable lawyer could sincerely believe in the reasoning ...."
4.27.2009 4:19pm
dmv (mail):

They can torture all they want and no one will pay attention.

Well, hell, Lucius, you just convinced me. If Myanmar does it, so should we!

...
4.27.2009 4:19pm
Connecticut Lawyer (mail):
There is no doubt that the desire to prosecute former Bush Administration officials for their conduct of the GWOT stems from a malign combintation of moral vanity with a deep seated desire to avenge the 2000 election. How else to explain the blessing conferred by all such advocates on the Obama policy of targeted executions in Pakistan? Is killing suspected terrorists without benefit of arrest or trial not worse than making them stand up in the cold or pouring water on their face?
4.27.2009 4:24pm
Joseph Slater (mail):
The even better part of Lucias's post was this: I get the sense that some of the writers in these discussions hate the US.

These torture threads have been a low point in VC history.
4.27.2009 4:28pm
My Middle Name Is Ralph:

My tentative view (not based on extensive research) is that Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.


How does torturing someone constitute self-defense? Do we really suppose KSM was going to break his shackles, jump off the table, and strangle the nice CIA officer but for suffocating him with a wet towel?
4.27.2009 4:28pm
Abdul Abulbul Amir (mail):

Can somwone please explain the proposition that when technique X is applied to person A as a condition of employment it is in no way torture, but the very same technique X applied to KSM is obvioulsy torture beyond any doubt.
4.27.2009 4:30pm
Richard Aubrey (mail):
zuch.
Don't be obtuse. He means it would take a truther to buy that argument. Not that there is a direct connection, other than that's the kind of brain the prosecution would want to seat twelve of with half a dozen similar alternates.
4.27.2009 4:30pm
My Middle Name Is Ralph:
Abdul, you'll have to be more specific in what you're talking about.
4.27.2009 4:37pm
jukeboxgrad (mail):
From the EHCR judgment:

It was not found possible by the Commission to establish for what periods T 6 and T 13 had been without sleep


This court declined to say that sleep deprivation was torture because they didn't know the duration. And everyone agrees that a short period of sleep deprivation is not torture. But is there anyone here who would like to claim that sleep deprivation could never be torture, regardless of the duration? Because if you do make that claim, you will need to argue with leading torture apologist Rich Lowry:

Several of the harshest methods — sleep deprivation, stress positions, and waterboarding — could easily constitute torture, depending on their application.


You will also need to argue with leading torture apologist Cliff May:

Time and intensity are relevant factors. Who would argue that a single night of sleep deprivation constitutes torture? Who would argue that a month of sleep deprivation is not?


Here's who: David Kopel. I guess.

If Rich Lowry and Cliff May see the need to concede that sleep deprivation eventually becomes torture, given sufficient duration, I think most normal Americans are likely to have a similar perception. Therefore I look forward to seeing the torture apologists sell the idea that sleep deprivation could never possibly be torture, regardless of duration.
4.27.2009 4:38pm
dmv (mail):
Ralph:

Abdul is referring to SERE. Again. Despite the memos' very assertion that SERE waterboarding is so unlike that done by CIA that it's almost irrelevant.

Joseph Slater:

Yeah, I decided I'd just ignore that one, it was so asinine. And yeah, these are the low point for VC. Revealing, though. In a disturbing kind of way.
4.27.2009 4:41pm
MarkP (mail):
I couldn't care less about a case that doesn't involve waterboarding. For those who support the Bybee/Yoo view of the world, what is your basis for arguing that waterboarding is not torture? Be specific. I've read the Yoo Memo, and it does not provide a good delineation of the difference between waterboarding and torture. Anyone here want to take a stab at it?

Mark
4.27.2009 4:42pm
rosetta's stones:

Heaven help us. Kopel committed the ultimate sin of using logic and reasoning in discussing this issue.


Yes, we must burn this heretic. No quarter given to torture mongers. No discussion. No debate can be allowed.

Torture is whatever we don't like. Fire will cleanse those heretics who claim otherwise.

Except that as Kopel points out, some of these techniques are in use elsewhere as part of accepted means of coercive interrogation.

And depending on whose polling you believe, we have about an even split in the US as to whether these coercive methods are acceptable.

So the heresy trials needn't be docketed just yet. Maybe we should continue with a few of these low point discussion topics that Slater thinks are so bad, you know, rather than going straight to the fires.
4.27.2009 4:46pm
Oren:

Is killing suspected terrorists without benefit of arrest or trial not worse than making them stand up in the cold or pouring water on their face?

In a situation where you can effect the peaceful surrender of the perp, you are forbidden from shooting him. The situation of a prisoner who has already surrendered is quite different.
4.27.2009 4:54pm
zuch (mail) (www):
Eric Rasmusen:
Very nice post. I've been looking for discussion of the legal meaning of "torture". Liberals are showing in this discussion that: 1. They don't care a bit what the law actually says-- if they think somebody did something immoral, that person should be imprisoned, ...
And where has anyone made this claim?
...and 2. They have no ability to see that any honest man, let alone the average man, might disagree with them about what a word such as "torture" means.
I have no problem with seeing about this. Let's let them tell it to a jury.

Cheers,
4.27.2009 4:55pm
Bruce Wilder (www):
For Kopel's arguments to make any sense, whatsoever, there must be some category of persons, the government is legally permitted to imprison and interrogate in the manner contemplated. What is the category?

Can we assign Bybee and Yoo to that category? Why not?
4.27.2009 4:58pm
Gilbert (mail):
@My Middle Name Is Ralph

Ireland v. UK is cited for the proposition that although an act might be cruel inhuman and degrading, it is not necessarily torture if it does not inflict pain (physical or mental) of the requisite "sever[ity]." Whether you agree with that conclusion or not, that's what it said.
4.27.2009 5:01pm
zuch (mail) (www):
Oren:
[Prof. Kopel]... if the American lawyers sincerely believed in the legal reasoning which they offered (even if that legal reasoning was poor quality, foolish, or incompetent), then we have an entirely different situation. Hardly an easy case in which to secure a conviction beyond a reasonable doubt.
[Oren]: Why a subjective test and not a reasonable person (lawyer) test: "if a reasonable lawyer could sincerely believe in the reasoning ...."
Yes, this is (or should be) implicit: If a lawyer opines that wilfully beheading a random person walking down the street isn't murder (say, for lack of requisite "specific intent" due to the lawyer's advice, or on some abstruse theory that such separation of a head from the body would not cause death), this would hardly excuse either the perp or the lawyer.

Cheers,
4.27.2009 5:01pm
Lucius Cornelius:
dmv:



They can torture all they want and no one will pay attention.




Well, hell, Lucius, you just convinced me. If Myanmar does it, so should we!


No. But if Myanmar and other countries help draft a definition of "torture" that is so restrictive that anything less than an all exclusive night at a five star resort constitutes "torture" then maybe the definition is of questionable value.

Certain kinds of treatment of captured terrorists is unacceptable. Other kinds of treatment are acceptable. A serious discussion of "torture" will take this into consideration.
4.27.2009 5:06pm
zuch (mail) (www):
Connecticut Lawyer:
There is no doubt that the desire to prosecute former Bush Administration officials for their conduct of the GWOT stems from a malign combintation of moral vanity with a deep seated desire to avenge the 2000 election....
I assume you know you're speaking for yourself only here.
... How else to explain the blessing conferred by all such advocates on the Obama policy of targeted executions in Pakistan? Is killing suspected terrorists without benefit of arrest or trial not worse than making them stand up in the cold or pouring water on their face?
Aren't you assuming facts not in evidence? I, personally, am not convinced of the legality of such bombings (but think it an arguable point); I wish they wouldn't do it (particularly as the countries involved have [at least openly] protested such). But there's a huge difference between killing people on the battlefield (and even "collateral damage" of killed civilians), and actions taken on one who has been rendered hors de combat.

Cheers,
4.27.2009 5:09pm
jukeboxgrad (mail):
abdul:

Can somwone please explain the proposition that when technique X is applied to person A as a condition of employment it is in no way torture, but the very same technique X applied to KSM is obvioulsy torture beyond any doubt.


I think you're suggesting that waterboarding was a condition of employment for our troops. Wrong. It was voluntary (link; see 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.


More importantly, you are suggesting that the SERE waterboarding technique is the same technique we used on our prisoners. This is one of the Big Lies of the torture debate. It's a lie that's been repeated very frequently. Sen. Bond repeated the lie yesterday (his statement is somewhat confusing, but that's what he seems to be saying).

A classic example of that lie being told is here, from our friend Rich Lowry:

Both the Army and Navy use waterboarding in their survival and resistance training. If waterboarding is torture, whoever has authorized and conducted this training should — as a strict matter of the law — be vulnerable to war-crimes prosecutions.


Lowry is ignoring the fact that the federal anti-torture statute only protects people who are in "custody," not people who are volunteers (and he's also ignoring the fact that it only applies outside the US). But what's far more important is that he's promoting the idea that SERE waterboarding is the same thing we do to our prisoners. Trouble is, CIA has admitted it's not (pdf, p. 41):

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


So you should stop promoting that lie.

I see that dmv has also pointed this out.
4.27.2009 5:13pm
Dan Hamilton:
Mark how about the Congress had a chance to define and outlaw waterboarding as torture. They argued about it but didn't end up naming it torture. Looks like an argument that waterboarding isn't torture to me. Or at least that not enough members of Congress believed it was. Honest people can differ.

But no Libs are always right and anyone who doesn't agree with them should be put in jail at the very least.

Please nobody in their right mind should want to go down this path. To criminalize policy disagrements is insane. It will do NOBODY any good and only hurt the country. If you Libs get your pound of flesh there is no way any lawyer in the government will EVER answer a question from above truthfully.

Bush asked as anyone would - "We have to try and get information from the terrorists. What can we do and still be legal." The Lawyers asked "What are you thinking of?" the CIA answered with the different levels with the top being waterboarding. The lawyers answered all those look LEGAL. Their opinion. And Congress later didn't define waterboarding as torture when they could have.

If this goes forward whenever the President asks for an opinion the lawyers are going to give the most CYA answer they can. Doesn't matter how important the question is. They will give an answer that NO ONE can use to come after them. Is that what you want??


That is the IMPORTANT part. The criminalization of Policy differences. If you can't see the great dangers in that, how do you find your house when you go home?
4.27.2009 5:15pm
Barrister's Handshake (mail) (www):
With all the "cheers" this is starting to feel like a drinking game...

Customer" "I'll have a waterboard."
Bartender: "Coming right up"
Customer: "Make it a double, with extra sleep deprivation and 183 splashes of the good stuff, I'm headed to a slammin truther party."
Bartender: "Oh yeah, any chance you'll be tortured with a lapdance?"
Customer: "I'm hoping so, why pay for it when you can get it for free. She'll probably be dancing to Nine Inch Nails."
4.27.2009 5:18pm
zuch (mail) (www):
Richard Aubrey:
Don't be obtuse. He means it would take a truther to buy that argument. Not that there is a direct connection, other than that's the kind of brain the prosecution would want to seat twelve of with half a dozen similar alternates.
Outside of the general gullibility of the people involved, then I see no reason the prosecution would seek such any more than the defence would. You didn't respond to my point that the al Qaeda/Iraq link was a sham, and that in fact, those that could recognise that (as well as being able to dismiss other unsupported conspiracy theories) would be more willing to fairly evaluate the evidence and the proffered defence, which on assumption here is that this (alleged) link would serve as a "justification" for the defence at trial.

The strategy still makes no sense ... except to "al Qaeda/911 truthers".

Cheers,
4.27.2009 5:19pm
Dan M.:
Was there a legal argument made that sleep deprivation never constitutes torture, or simply that it would not be torture if done according to the guidelines set forth in the memo? Could not a reasonable person perhaps believe that?

Yes, I believe that being forced to stand for over 7 days without sleep is torture. I think it's less ambiguous than waterboarding.
4.27.2009 5:20pm
zuch (mail) (www):
rosetta's stones:
Except that as Kopel points out, some of these techniques are in use elsewhere as part of accepted means of coercive interrogation.
Where? Myanmar? Egypt? Saudi Arabia (oh, nevermind, they're our friends....) But the case cited by Kopel determined that the practises described there were not "accepted means of coercive interrogation" (a minority report even said that these, absent waterboarding even, were torture).

Cheers,
4.27.2009 5:24pm
jukeboxgrad (mail):
dan:

how about the Congress had a chance to define and outlaw waterboarding as torture. They argued about it but didn't end up naming it torture. Looks like an argument that waterboarding isn't torture to me.


Looks like you've been spending too much time getting your news from people like Rush.

You're making reference to something called the Kennedy amendment. If this event (the rejection of the Kennedy amendment, by a GOP Congress) made waterboarding legal, then it also legalized burning and electric shock. Details here.
4.27.2009 5:25pm
Bob from Ohio (mail):

Accordingly, the fact that it might be difficult to convict Judge Bybee of a crime in federal court because of those concepts does not preclude his being impeached for the same underlying behavior.


Bybee might be impeached but there are not 67 votes to convict.

59 Dems

How do you get to 67?

Specter has a serious primary challenge from his right, Scottish law says he won't convict.

The Maine Twins? Maybe. Let's give you those.

Other than that, no GOP senator will vote to convict. Not going to happen.

61 but will every Dem stay on the reservation. Voting to convict a patriotic American for writing a memo. Regarding waterboarding of the mastermind of 9/11. Nelson and Tester, for instance, might not feel it prudent. Maybe they would though. Still leaves you somewhere between 59 and 61.

Bybee stays on the court.
4.27.2009 5:26pm
Dan Hamilton:
Oren

In a situation where you can effect the peaceful surrender of the perp, you are forbidden from shooting him.


Oren, please!
If you want to send POLICE after the terrorist just say so. Treating the terrorist as just criminals is to stupid for words but if that is your opinion OK.

But both Obama and Bush decided to treat it as a war against terrorist. And in a war the above statment is way way out there and makes no sense.
4.27.2009 5:30pm
jukeboxgrad (mail):
lucius:

Certain kinds of treatment of captured terrorists is unacceptable. Other kinds of treatment are acceptable. A serious discussion of "torture" will take this into consideration.


I hope you and others here who are interested in "a serious discussion of 'torture' " will answer the question that Dan M. was courageous enough to answer. The OP implies that sleep deprivation is never torture, regardless of the duration. Do you agree?
4.27.2009 5:30pm
PC:
Mark how about the Congress had a chance to define and outlaw waterboarding as torture. They argued about it but didn't end up naming it torture.

They also didn't ban the rack, the strappado, white hot pokers or any other specific method of torture. Those are okay too?
4.27.2009 5:31pm
zuch (mail) (www):
Dan Hamilton:
Mark how about the Congress had a chance to define and outlaw waterboarding as torture. They argued about it but didn't end up naming it torture. Looks like an argument that waterboarding isn't torture to me.
Not exactly. They did not pass a law stating that waterboarding is not torture. That would be definitive. But that they did not do.

There might have been many different motivations responsible for those that decided not to put in that specific prohibition, amongst them, the idea that prohibiting specific forms of torture might be used by those to say "You didn't say 'Simon says'!" and claim that any newly devised specific procedures were not torture because there was no specific prohibition.

On a more general note, I'm amased (and somewhat disgusted) at the preponderance of those here that argue for the legality of such procedures in the face of pretty much universal condemnation of torture, and who try to argue that we really didn't mean to prohibit such horrible maltreatment. It would be far more honest to argue that we shouldn't prohibit torture (for reasons X, Y, and Z....), and be upfront about it.

Cheers,
4.27.2009 5:33pm
Dan Hamilton:
jukeboxgrad,
I was NOT saying that it made it legal. But it did make it an arguement! NOT CLEAR CUT. Something that honest people can differ over. In other words a POLICY DISAGREMENT! Not something for the courts.
4.27.2009 5:36pm
zuch (mail) (www):
Dan Hamilton:
That is the IMPORTANT part. The criminalization of Policy differences. If you can't see the great dangers in that, how do you find your house when you go home?
How old were you in 1998? Just curious....

Cheers,
4.27.2009 5:37pm
My Middle Name Is Ralph:

@My Middle Name Is Ralph

Ireland v. UK is cited for the proposition that although an act might be cruel inhuman and degrading, it is not necessarily torture if it does not inflict pain (physical or mental) of the requisite "sever[ity]." Whether you agree with that conclusion or not, that's what it said.


That's not what Kopel cited Ireland v. UK for. He argues that the five techniques as applied and described in Ireland v. UK were found not to be torture and that in some unexplained manner this throws into doubt whether the techniques employed by the CIA were torture. Of course this is a stupid argument. Besides the obvious fact that whether many of these techniques are "torture" depend upon the intensity, duration, and circumstances in which they were employed, the case doesn't even address many of the most contentious techniques we used, including waterboarding.

The proposition you cite is definitionally correct under the CAT, but beside the point in addressing whether what we did was "torture" as defined by the Federal Torture Statute.
4.27.2009 5:37pm
zuch (mail) (www):
Bob from Ohio:
[citing almost certain opposition of essentially all Republicans to impeachment] Bybee stays on the court.
Maybe so (sadly). But he might have to hold court from a cell. There's no impediment to indicting, trying, and convicting a sitting judge.

Cheers,
4.27.2009 5:41pm
Bored Lawyer:

... if the American lawyers sincerely believed in the legal reasoning which they offered (even if that legal reasoning was poor quality, foolish, or incompetent), then we have an entirely different situation. Hardly an easy case in which to secure a conviction beyond a reasonable doubt.


Why a subjective test and not a reasonable person (lawyer) test: "if a reasonable lawyer could sincerely believe in the reasoning ...."


Again, because what is being proposed is a criminal prosecution, not a civil action for malpractice.

Can you cite any case where a lawyer was criminally prosecuted for giving his client bad advice? And if you can find such a case, where the standard for criminal liability was negligence?

(I would concede that if, say, a tax lawyer conspired with his client to give a sham tax-law opinion to avoid taxation, he might be subject to prosecution. But the govt. would have to show that there was an intent to make a sham opinion -- not mere negligence.

Of course, if the tax lawyer is wrong, even through mistake, the client still has to pay the taxes. But criminal prosecution is another matter entirely.)
4.27.2009 5:42pm
Dan Hamilton:
Zuch, I'm 55. And if you want to say that policy differences have been criminalized in the past, fine. That doesn't mean that it was ever a GOOD IDEA. And I don't care who is or was doing it.

Also today is very different. The internet (email) makes it different.
4.27.2009 5:44pm
Anderson (mail):
Not to mention whether the defendants could raise the justification of necessity. As the Bybee memo points out, the Torture Convention excludes any justifications, but the federal torture statute does not exclude justifications or excuses. My tentative view (not based on extensive research) is that Self-Defense and Necessity are inherent in our Anglo-American legal tradition of liberty, and that any statute which purports to exclude Self-Defense or Necessity should be unconstitutional.

Mindboggling. We're not to interpret the Torture Act with any reference to the treaty we signed that required us to enact same? Any treaty obligation is unconstitutional if "necessity" can be pleaded? Can we have a case citation? Or are we just making things up here?

More posts about guns, please, Prof. Kopel. Defending torturers does not seem to be your strong suit. I mean that as a compliment.
4.27.2009 5:45pm
Anderson (mail):
would have to show that there was an intent to make a sham opinion -- not mere negligence

I think that's right. And that's the argument vs. Bybee and Yoo.
4.27.2009 5:46pm
zuch (mail) (www):
Dan Hamilton:
[Oren]: In a situation where you can effect the peaceful surrender of the perp, you are forbidden from shooting him.
Oren, please!
If you want to send POLICE after the terrorist just say so. Treating the terrorist as just criminals is to stupid for words but if that is your opinion OK.
Actually, this prohibition applies to military affairs as well.

But I'd note that the gravamen of the complaint against the terrorists is that they have in fact violated laws (including the law of war). If they did nothing criminal, then they are afforded a panoply of rights (which the U.S. gummint has long denied them).

Cheers,
4.27.2009 5:46pm
PC:
In other words a POLICY DISAGREMENT! Not something for the courts.

No, a policy disagreement is when you want to stop Federal funding of stem cell research and the opposition doesn't. Torturing people is a Federal crime.
4.27.2009 5:47pm
dmv (mail):
Anderson:

Or are we just making things up here?


Yes.
4.27.2009 5:52pm
zuch (mail) (www):
Dan Hamilton:
Zuch, I'm 55. And if you want to say that policy differences have been criminalized in the past, fine. That doesn't mean that it was ever a GOOD IDEA. And I don't care who is or was doing it.
In Clinton's case, it wasn't even "policy differences". The RW just didn't like him, and sought any (and all) means to bring him down. Which they're starting to do with Obama too. It really doesn't matter what you do; if you're a Democrat, and you beat their boy, they're coming after you....
Also today is very different. The internet (email) makes it different.
Huh? I was quite active in Usenet/listservs during the Clinton administration. What's "different"? And why would that make a difference?

Cheers,
4.27.2009 5:52pm
PersonFromPorlock:
Why worry if the techniques are 'torture' at all? They're clearly 'assault' and that's enough to charge on.
4.27.2009 5:52pm
Andrew J. Lazarus (mail):

I would concede that if, say, a tax lawyer conspired with his client to give a sham tax-law opinion to avoid taxation, he might be subject to prosecution. But the govt. would have to show that there was an intent to make a sham opinion -- not mere negligence
I think this is the correct standard. And I do believe the Yoo/Bybee memos were a sham, and moreover were needed to excuse practices that were already taking place.

On another matter, the ICAT states that for torture there are no excuses "whatsoever". One would think that phrasing indicates a refusal to accept the necessity defense.
4.27.2009 5:58pm
rosetta's stones:

Zuch:
On a more general note, I'm amased (and somewhat disgusted) at the preponderance of those here that argue for the legality of such procedures in the face of pretty much universal condemnation of torture...


Hmmmmm, it's so universally condemned that about 40% of those polled disagree with you, and about another 20% are undecided on the matter.

Carry on with your amasement.
4.27.2009 5:58pm
My Middle Name Is Ralph:

Dan Hamilton:
Mark how about the Congress had a chance to define and outlaw waterboarding as torture. They argued about it but didn't end up naming it torture. Looks like an argument that waterboarding isn't torture to me. Or at least that not enough members of Congress believed it was. Honest people can differ.


You are making a fundamental mistake in equating failure to pass a law specifically against waterboarding with passing a law allowing waterboarding. They're not the same. Congress fails to pass laws for all sorts of reasons. There's a process for making and repealing law. It's in the Constitution. If Congress passed a law saying waterboarding was not torture for purposes of the Federal Torture Statute then it wouldn't be torture. Until that happens, you're left with the definition in the statutue. If you want to make a legal argument that waterboarding is not torture, you need to do it by applying the facts to the law.


Bush asked as anyone would - "We have to try and get information from the terrorists. What can we do and still be legal." The Lawyers asked "What are you thinking of?" the CIA answered with the different levels with the top being waterboarding. The lawyers answered all those look LEGAL. Their opinion.


The bolded language is the rub. Was it really these lawyers' hopnest and well considered opinions that the techniques described were not torture? Or, did they write their best rationalizations for torture so as to please their boss? I think the former is almost certainly not a criminal offense; I'm not sure about the latter.

Regardless, having a lawyer incorrectly tell you that something is legal hardly makes actions in reliance on that advice non-criminal or just a dispute over policy. The my-lawyer-told-me-it-was-legal defense to criminal accusations does not exist.
4.27.2009 6:00pm
Anderson (mail):
Daniel Larison continues to remind us that conservatives do not unanimously endorse evil.

Something else that has kept me from writing much on this recently is the profoundly dispiriting realization (really, it is just a reminder) that it is torture and aggressive war that today’s mainstream right will go to the wall to defend, while any and every other view can be negotiated, debated, compromised or abandoned. I have started doubting whether people who are openly pro-torture or engaged in the sophistry of Manzi’s post are part of the same moral universe as I am, and I have wondered whether there is even a point in contesting such torture apologia as if they were reasonable arguments deserving of real consideration.

It's like he reads this blog or something .... As usual, Larison's post is worth reading in full.
4.27.2009 6:00pm
rosetta's stones:

Regardless, having a lawyer incorrectly tell you that something is legal hardly makes actions in reliance on that advice non-criminal or just a dispute over policy. The my-lawyer-told-me-it-was-legal defense to criminal accusations does not exist.


It does if my lawyer is Eric Holder, which he is. And so far that's exactly what my lawyer Holder is telling me.
4.27.2009 6:07pm
Dan Hamilton:
Zuch,

Actually, this prohibition applies to military affairs as well


Yes Zuch, If they want to surender you have to take them NO MATTER WHAT! You play that way. After you are defeated please tell people that WE were very moral, we always were NICE and LEGAL. Now wife put on your Burka and son study your Koran.

There ARE things we shouldn't do. But our laws and Constitution are NOT a sucide pact. And War is not nice. Our troops do it better and more humanly then any army in history. But things happen and lawyers are not needed or wanted on the battle field. And Please don't talk about atrocities. I'm not talking about that level and lawyers are not needed for them anyway. It doesn't take a lawyers to decide if something is an atrocity. Only in our over lawyered cultured would it ever even come up.
4.27.2009 6:08pm
John Moore (www):

I'm amased (and somewhat disgusted) at the preponderance of those here that argue for the legality of such procedures in the face of pretty much universal condemnation of torture, and who try to argue that we really didn't mean to prohibit such horrible maltreatment.

And I'm continually by the lack of sense of proportion, and the insularity of those who say things like this.

It's a bit dishonest to claim something is torture, and then invoke universal condemnation of torture (which doesn't really exist), when only a percentage of those who condemn "torture" would content these practices under the circumstances they were undertaken.

When one says "torture," most people envision nail pulling, electric shocks, burning with hot objects, etc. We didn't do any of that.
4.27.2009 6:09pm
Andrew J. Lazarus (mail):
Amazing, how people who say they love freedom and love America are so chicken they believe we need torture and summary executions to defend ourselves. Red, white, blue and mostly yellow.
4.27.2009 6:10pm
Ben S. (mail):
Zuch,

I take it from the "cheers" that you aren't American (that, or you recently spent a summer abroad and you fancy saying "cheers" to sound fashionable). If so, this partially explains why you are badly out of touch with the reasons the U.S. went to war in Iraq. It was not because any direct links were alleged between 9/11 and Iraq.

Rather, it was that 9/11 demonstrated what happens when you let Islamic terrorists work behind the scenes unchecked. Thus, in the post-9/11 world, the U.S. could no longer tolerate Islamic terrorism as a general matter. Iraq, due to its weapons program, refusal to play ball with international inspections, and sponsorship of rouge terrorist factions (along with Arafat and the PLO), became a prime target of the U.S.'s list of regimes to clean out. It was a problem that had lingered for years and the patience for such problems ran out with 9/11.

So, to recap, no one with any sense believed there was a direct association between 9/11 and Iraq, and you are hacking at strawmen when you suggest this. Rather, it was simply that 9/11 taught us what happens when known terrorist entities are ignored. Clinton secured the U.N. resolution authorizing military force against Iraq; right or wrong, Bush just had the balls to use it.

For supposedly reflecting the highest degree of intellectualism and sophistication, you libs sure act quite dense.
4.27.2009 6:17pm
Bored Lawyer:

Regardless, having a lawyer incorrectly tell you that something is legal hardly makes actions in reliance on that advice non-criminal or just a dispute over policy. The my-lawyer-told-me-it-was-legal defense to criminal accusations does not exist.


1. It does if your lawyer is the U.S. Govt. There is an estoppel problem here -- the govt. cannot tell its employees that an act is legal and then turnaround and prosecute them for committing that very act.

2. Where there is ambiguity, then advise of counsel may well be relevant. That's the point of the post.
4.27.2009 6:18pm
dmv (mail):
We have nothing to fear but fear itself.
4.27.2009 6:20pm
Dan Hamilton:
Andrew J. Lazarus


Amazing, how people who say they love freedom and love America are so chicken they believe we need torture and summary executions to defend ourselves. Red, white, blue and mostly yellow.


Andrew, I am sorry that you can't read and that you have no memory, bless your heart.

Except for a few people that look like trolls no one is saying that we should torture. We are disagreeing on how torture is defined. The Libs seem to say ANYTHING at all is torture. The others that waterboarding isn't torture. Especially since reports have had thenselves waterboarded to show how bad it is. HINT: If you are willing to go through it for little or no reason then it isn't torture. Please see You-tube.

And as for Summary Executions. That depends on who you caught. A pirate in the act. No problem. Catch and release like the Brits did is just wrong. High level terrorists. Of course how else are you going to get them.

Oh yes. You want to catch them bring them back to the US and try them in court. BTW: What US laws did they break? What level of proof are you going to require? If you do manage to confict him where are you going to imprison him? Treating terrorists like criminals is sooooo... smart.


Red, white, blue and mostly yellow


I served, you )(*&)(50976276523-86&)A%%$$! And would have no problem serving now but they don't want my old fat ass.
the only people that say such things are people that think that the Viet Nam draft dogers were great.
4.27.2009 6:31pm
James Gibson (mail):
If my memory is correct a new issue comes to the fore if we are to conclude that sleep depredation is a form of torture. If so then we must charge the Bush senior administration and all allied nations in Gulf War one with torturing the Republican guard with round the clock bombing missions in which one of the intents was to prevent them from sleeping.

After this Janet Reno and William Jefferson Clinton must be tried as well for implementing Sleep depredation on the Branch Davidians (including children) during the Waco siege of 1993.
4.27.2009 6:32pm
MarkP (mail):
Dan,

I asked a very simple question, and yet you explode in a rant. So be it. I suspect that you protest so much because you can't explain how waterboarding is not torture.

You say that Bybee/Yoo gave an "opinion" that waterboarding is not torture. I'm asking for someone -- anyone -- who holds that opinion to explain the basis for their opinion. The Yoo Memorandum certainly fails. But I'm open to being convinced.

But your reply does raise a number of issues and questions.
1) "Does Congressional inaction on a waterboarding statute indicate that the U.S. statute outlawing torture does not cover waterboarding?" Jukeboxgrad is on target here. Congress' decision to not make waterboarding a separate crime indicates nothing. Representatives may simply consider waterboarding to be torture such that no separate statute is required.
2) "Is an inquiry into the criminality of Bybee or Yoo or the agents who waterboarded a 'criminalization of policy disagreement'?" No, it is not. We have a statute that prohibits torture. We have a statute that prohibits being an accessory to torture and another statute that specifically prohibits conspiracy to commit torture. Did the CIA agents commit torture? Did Bybee or Yoo conspire with others or otherwise aid a violation of the torture statute? That question is not a policy disagreement; it is a question of statutory interpretation, and it is a question of factual development and proof. It's a question of law. The only people I know who don't want questions like these asked are criminals.

3) "Do you want government lawyers to give CYA advice?" No, I do not. But you pose a false dichotomy between CYA advice and Katie-bar-the-door-the-CIA-gets-to-do-whatever-they-want advice. The practice of law involves the exercise of judgment AND integrity. Bybee's and Yoo's role in condoning waterboarding, as lawyers, certainly calls into question both their judgment and their integrity. If Bybee and Yoo, for whatever reason, truly believed that waterboarding is not torture, I consider them to lack judgment. No crime there. If, however, Bybee and Yoo actually considered waterboarding to be torture but, for some reason (patriotism, careerism, fecklessness, etc.), wanted to draft an opinion condoning the practice, then they lacked integrity. Worse, they may have possessed criminal intent.

Bybee and Yoo weren't entitled to "have a policy disagreement" with Congress over 18 U.S.C. 2340A. They were obligated to counsel their client to follow the law. They were obligated to NOT assist a violation of the law. I believe that Bybee and Yoo knew that waterboarding is torture. I believe that they knew waterboarding violated U.S. law. I believe that Bybee and Yoo knowlingly prepared legal memoranda in order to aid the violation of federal law. Therefore, I believe that Bybee and Yoo specifically violated 18 U.S.C. 2340A(c). And this has nothing to do with "policy" but with law.

4) "What are the dangers in calling a question of law a 'disagreement about policy'?" It destroys the legal profession, and it destroys the Rule of Law. Our profession (for those of us who are lawyers) has one primary role: to assure that the public and the government comply with the law. When Congress passes a law banning torture in 18 U.S.C. 2340A, it is our job as lawyers to try to make sure that everyone -- government officials included -- complies with the law. Our laws are not policies. They are commands. Arguing that even questioning Bybee's and Yoo's actions is the "criminalization of a policy disagreement" completely undermines the Rule of Law, because it promotes the idea that there are no laws that truly bind our actions -- only argument and spin. I trust the AG, and, if necessary, grand juries and petit juries, to decide whether Bybee and Yoo are criminals. By asking this question, the Rule of Law is maintained. Failing to ask the question destoys the Rule of Law. So, to answer your final question, I find my house and my home quite easily, because they are the same thing. It's like knowing that waterboarding is torture.
4.27.2009 6:36pm
PC:
If so then we must charge the Bush senior administration and all allied nations in Gulf War one with torturing the Republican guard with round the clock bombing missions in which one of the intents was to prevent them from sleeping.

You might want to check the statute in regards to custody or physical control." Nice try otherwise.
4.27.2009 6:42pm
jukeboxgrad (mail):
hamilton:

I was NOT saying that it made it legal. But it did make it an arguement!


If you claim that the rejection of the Kennedy amendment "make it an arguement" that waterboarding might be legal, then you are also making the same claim regarding such things as electric shock and burning. Are you really making that claim?

Also, feel free to address the following issue. 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?

I also notice you haven't answered the question I asked regarding sleep deprivation. Do you accept the notion that it can never be torture, regardless of duration?

=================
bored:

the govt. would have to show that there was an intent to make a sham opinion


There seems to be some evidence of "an intent to make a sham opinion." As Andrew said: the memos "were needed to excuse practices that were already taking place."
4.27.2009 6:42pm
PC:
HINT: If you are willing to go through it for little or no reason then it isn't torture.

Sex = rape.
4.27.2009 6:51pm
Bruce Hayden (mail):
Regardless, having a lawyer incorrectly tell you that something is legal hardly makes actions in reliance on that advice non-criminal or just a dispute over policy. The my-lawyer-told-me-it-was-legal defense to criminal accusations does not exist.
Which is, essentially, irrelevant, when it comes to whether or not the lawyer is guilty of a crime. You need to keep straight the players here. The goals here are Bybee, Yoo, et al., who were the attorneys who wrote the memos that are claimed to have justified the maltreatment of the terrorists (or, if you prefer, the torture of the innocent bystanders).

The Obama Administration has stated that it isn't going to prosecute the actual perps here, but left open whether or not those who gave the advice allegedly justifying the actions could be prosecuted.

P.s. How about statutes of limitations here? Shouldn't any actions against the lawyers be bound by such started running at the date of their memos? Not sure if this has been discussed.
4.27.2009 6:53pm
Bruce Hayden (mail):
Bybee and Yoo weren't entitled to "have a policy disagreement" with Congress over 18 U.S.C. 2340A. They were obligated to counsel their client to follow the law. They were obligated to NOT assist a violation of the law. I believe that Bybee and Yoo knew that waterboarding is torture. I believe that they knew waterboarding violated U.S. law. I believe that Bybee and Yoo knowlingly prepared legal memoranda in order to aid the violation of federal law. Therefore, I believe that Bybee and Yoo specifically violated 18 U.S.C. 2340A(c). And this has nothing to do with "policy" but with law.
I believe a lot of things. Some are likely true, and some maybe not. But how are you going to prove this belief of yours of their ill intent beyond a reasonable doubt? I would think that by now any smoking gun memos showing such intent would have already been made public. Not necessarily, of course, but likely for political gain.
4.27.2009 6:57pm
flyerhawk:
Let me start off by saying that I don't think that the government should pursue criminal convictions of anyone in this matter. While laws were violated, they often are and probably most Presidents have allowed for the violation of some U.S. laws for various reasons, both good and bad. Certainly most of the Presidents we consider "great" willfully violated the law.

So if we begin to criminally prosecute people for engaging in policy actions that violate the law, we start down a slippery slope in which each successive administration would likely find itself victim to partisan "criminal" prosecutions.

Personally I think that Congress should pass some sort of joint resolution condemning the Bush Administration for acts that violated the spirit and humanity of America and the President should sign it. It won't have any actual material impact to specific people but it would signal to the world that we DO NOT approve of these actions.

Having said all that I find the constant attempt at whittling away at the definition of torture to be morally putrid rationalizations. Whether the Administration or various intel professionals can be found criminally guilty of torture is a legal argument. The MORAL argument is clear as day to anyone who is not allowing their politics to blind them.

Waterboarding people is a morally reprehensible act. Sleep deprivation for a week or more is a morally reprehensible act. Whether you call it torture or a ham sandwich it remains a morally reprehensible action. You can argue, perhaps, that the people who approved these acts were blinded by outrage/loyalty/patriotism/etc. But that doesn't change the fact that what they did was morally wrong and should never be something we approve of.
4.27.2009 6:58pm
jukeboxgrad (mail):
hayden:

The Obama Administration has stated that it isn't going to prosecute the actual perps here


Not quite. He said he won't prosecute torturers who adhered to the guidelines in the memos. Trouble is, there are lots of indications in the memo themselves that the torturers did not adhere to the guidelines in the memos.

how are you going to prove this belief of yours of their ill intent beyond a reasonable doubt?


By considering obvious evidence like content and timing, as I described here. And this evidence relates to what I just said about the CIA exceeding various limits.
4.27.2009 7:11pm
Dan Hamilton:
MarkP.

Does any US law define waterboarding as torture? I don't think so. Therefore neither I nor anyone else has to prove it isn't torture. Or have I got that legal idea wrong? You have to prove that it is torture. You may say it is. Libs may yell it from the roof tops. That doesn't make it legaly torture.

So please state where in the law it says that what the CIA did (exactly what they did) is torture. Bybee and Yoo's legal opinions were that it wasn't. Alot of Libs disagree.
Why are their opinions any better then Bybee's and Yoo's?

Oh, yes I remember. You don't agree with them. Obama agrees with you and has stopped it. The Congress didn't. There were big arguments about specificly naming waterboarding as torture. And no the fact that they didn't name it illegal doesn't mean it is legal. BUT it also doesn't mean that it is illegal. Seems that THERE ARE TWO SIDES.

You will probly get your wish and Yoo and Bybee will be brought to a nice show trial. Then the US Supreme Court will eventually decide if waterboarding is torture.

Even if they win. All government lawyers will know that ANY opinion that they give can be criminalized. That will sure help the country. That is what we need to be spending time on at this quiet uneventfull time.

But please continue on your witch hunt. Maybe you can even get to your Holy Grail of Bush or Cheny. Yes, make sure that the incomming President will try and destroy the outgoing President and his people. Up the stakes, make them sky high, for losing the election. That will have no effect. It will make the country better. Sure.
4.27.2009 7:12pm
John Moore (www):

Waterboarding people those who know where a terrorist nuke has been placed is a morally reprehensible act. Sleep deprivation for a week or more is a morally reprehensible act. Whether you call it torture or a ham sandwich it remains a morally reprehensible action.


Fixed to satisfy all libs.
4.27.2009 7:15pm
MarkP (mail):
Bruce Hayden,

As I pointed out in my original post, the question of whether Bybee and Yoo are criminals is a question that must be decided first by the AG (my view of it -- and that of all others besides the AG -- does not matter a whit). If he concludes that they are criminals who should be prosecuted, then a grand jury and a petit jury must agree before Bybee and Yoo become convicted criminals.

Frankly, I've seen much weaker cases of subjective criminal intent than the one exhibited in the Yoo Memorandum. But I trust the AG to make the call in the first instance, based on all the facts that can be marshalled by the appropriate law-enforcement officers. My main problem with Dan's post was that he appears to think that the question of Bybee's and Yoo's criminality shouldn't even be asked. And I'd still like to see a good argument that waterboarding is not torture.

Cheers (says this Southerner)

Mark
4.27.2009 7:18pm
flyerhawk:
I'm not sure what your attempt at snark is trying to say?

The ticking time bomb hypothetical doesn't make torture any less reprehensible, regardless how much people love watching Jack Bauer torture random brown people.

You may argue that circumstances may require a person to act immorally in order to prevent an evil greater evil from occurring.

Of course in the real world where 99.9% of suspected terrorists are, at best, peripherally involved and have no real information, the ticking time bomb hypothetical doesn't really apply.
4.27.2009 7:23pm
Andrew J. Lazarus (mail):
Does any US law define waterboarding as torture? I don't think so. Therefore neither I nor anyone else has to prove it isn't torture. Or have I got that legal idea wrong? You have to prove that it is torture. You may say it is. Libs may yell it from the roof tops. That doesn't make it legaly torture.
Does any US law define electric shocks to the testicles as torture. Etc. This sort of argument is, at its core, frivolous. Perhaps you can use it to persuade yourself in private, but it looks (given the example of electric shocks) totally empty under scrutiny.

I agree that to convict someone of torture on the basis of waterboarding, it is necessary to establish that waterboarding is torture. We don't, however, seem to have found that difficult to prove when Americans were the victims.

I'll take your word for it that you served—as I do in general with non-anonymous commenters—but that leaves me all the more baffled that you see torture as the only thing between us and my wife in a burqa. You think yours was the last cohort with any non-torture military skills?
4.27.2009 7:30pm
Dan Hamilton:

My main problem with Dan's post was that he appears to think that the question of Bybee's and Yoo's criminality shouldn't even be asked.


You are correct. All adminstrations break laws. They have to break some very very important laws to make it worth it to prosecute. Bybee and Yoo don't even come close. When lawyers give the President their opinions they shouldn't be CYA opinions. Just as the opinions and advice people give the President are nobody's business but the Presidents. Otherwise the President will never be able to trust that people are giving him their real opinions. I would think you would see that. But you seem to be after your pound of flesh and nothing else matters. Sorry. There are things far more important.
4.27.2009 7:32pm
MarkP (mail):
Dan,

Try to calm down.

You're right. You don't have to prove that waterboarding isn't torture. No one does. But it would certainly help this discussion if someone could.

If you recall, our little thread began when I simply asked someone -- anyone -- to give a good argument that waterboarding isn't torture. IT WAS AN INVITATION. No one had to reply. But you did reply with (now) multiple tirades in which you still have not put forward a plausible argument that waterboarding is not torture.

So let's continue the discussion. Let's assume, for the sake of argument, that waterboarding is torture. If so, should Bybee and Yoo be subject to prosecution under 18 U.S.C. 2340A(c)? If not, why not?

Cheers (and I mean it).

Mark

P.S. For what it's worth, most people consider me to be quite conservative.
4.27.2009 7:32pm
jukeboxgrad (mail):
hamilton:

Does any US law define waterboarding as torture?


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.

Feel free to explain why that was all a big mistake.

Keep in mind that in our legal system, we don't just look at the words in the statute. We also look at case history that is relevant to the subject matter of the statute. That helps us interpret the statute. Waterboarding has been around for centuries, and it has been universally described as a form of torture, and it has been treated that way by courts here and elsewhere. Claiming that waterboarding is not torture is a Bush administration innovation.

By the way, many laws refrain from trying to specify all the ways the law can be broken. Why? Because that encourages criminals to invent exceptions. How would one write a law forbidding waterboarding? If the law specifies that I can't try to drown you with water, does that mean it's OK if I use Kool-Aid? Red wine? Motor oil? What if I decide to suffocate you with cellophane, and use no liquid at all? Suddenly there's no torture?

Are you starting to catch on to the problem?

And as Andrew pointed out, are you similarly confused about electric shock? It's not mentioned in the statute. Does that mean you think it might be something other than torture?
4.27.2009 7:37pm
scattergood:
If any anybody is prosecuted, it'll be interesting to see what kind of political Pandora's box is opened. Let's look at what AG Holder said about non-combatant's and their ability to be protected by the Geneva Accords:


ZAHN: When you have Secretary of State Powell saying, "Let's abide by the Geneva Convention," and then folks on the other side, we are told, saying "Wait a minute. If we hold them to that kind of status, then all they'll be required to give us is their name, rank and file number."

HOLDER: Yes, it seems to me this is an argument that is really consequential. One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention that you are really limited in the amount of information that you can elicit from people.

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohammed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not.

And yet, I understand what Secretary Powell is concerned about, and that is we're going to be fighting this war with people who are special forces, not people who are generally in uniform. And if unfortunately they somehow become detained, we would want them to be treated in an appropriate way consistent with the Geneva Convention.

ZAHN: So is the secretary of state walking a fine line here legally? He is not asking that the United States declare these men as prisoners of war right now. He's just saying let's abide by the Geneva Convention in the meantime.

HOLDER: Yes, and I think in a lot of ways that makes sense. I think they clearly do not fit within the prescriptions of the Geneva Convention. You have to remember that after World War II, as these protocols were being developed, there seemed to be widespread agreement that members of the French Resistance would not be considered prisoners of war if they had been captured. That being the case, it's hard for me to see how members of al Qaeda could be considered prisoners of war.

And yet, I understand Secretary Powell's concerns. We want to make sure that our forces, if captured in this or some other conflict, are treated in a humane way. And I think ultimately that's really the decisive factor here. How are people, who are in our custody, going to be treated? And those in Europe and other places who are concerned about the treatment of al Qaeda members should come to Camp X-ray and see how the people are, in fact, being treated.

Source





And this was in 2002!

Further, as members of the military sue Murtha for statements he made about them being guilty and stone cold killers, his defense and the one that the AG is supporting is that he cannot be sued because he was acting within the scope of his official Congressman duties. But yet some how we can sue Yoo who wrote a memo as a White House lawyer regarding some legal interpretations. Nah, that wasn't acting withing his role as a legal advisor!

The really big pandora's box is if and when Obama is no longer President and there has been a preventable attack on US citizens that wasn't discovered during his term because he refused to use enhanced techniques, or because those techniques were no longer effective because the enemy knew about them. Why couldn't a Republican Pres / AG bring Holder, Obama, et al. up on charges of treason for giving aid and comfort to the enemy? Certainly providing them specific and detailed information as to what interrogation techniques will and will not be used is aid.

The road to hell is paved with good intentions....
4.27.2009 7:41pm
zuch (mail) (www):
rosetta's stones:
[zuch]: On a more general note, I'm amased (and somewhat disgusted) at the preponderance of those here that argue for the legality of such procedures in the face of pretty much universal condemnation of torture...
Hmmmmm, it's so universally condemned that about 40% of those polled disagree with you, and about another 20% are undecided on the matter.
146 parties to the CAT. But no accounting for RW Republicans in the Yoo Ess of Effin' Aye.... Fancy that....

Cheers,
4.27.2009 7:44pm
MarkField (mail):

But if Myanmar and other countries help draft a definition of "torture" that is so restrictive that anything less than an all exclusive night at a five star resort constitutes "torture" then maybe the definition is of questionable value.


I suspect President Reagan was advised on this issue before he signed the Convention Against Torture.


Why worry if the techniques are 'torture' at all? They're clearly 'assault' and that's enough to charge on.


If the acts took place where US law applies, you're right. The torture statute gives universal jurisdiction and applies to acts outside of the US.
4.27.2009 7:48pm
Dan Hamilton:

Does any US law define electric shocks to the testicles as torture. Etc. This sort of argument is, at its core, frivolous. Perhaps you can use it to persuade yourself in private, but it looks (given the example of electric shocks) totally empty under scrutiny.


Bybee and Yoo were asked to define the limits! How far could we go and it not be legaly torture. They answered. Waterboarding is on the legal side of the line. Until you can come up with a US law that says that waterboarding as done by the CIA is torture, Bybee's and Yoo's legal opinion still controls. Obama doesn't want to go to that limit. Fine. He set the Limit Lower. I have yet to hear of a new legal opinion out of the Justice Department saying that waterboarding IS torture. I could be wrong but if I am not then waterboading is STILL the Legal Limit.

As I understand it. The Justice Department is asked by the President for a legal opinion so he can define Policy. The Justice department gives their opinion and that opinion is legally controling until supperceeded by another Memo or rejected by the courts/Congress. It definds what is legal.

Until the Justice Department has resended the Bybee and Yoo memos or supperceeded them. They still define what is legal.

Has the Justice Department done that? I don't remember hearing that they have. Can someone tell me if they have.
4.27.2009 7:52pm
jukeboxgrad (mail):
scatter:

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war.


Holder wasn't saying they are completely unprotected by GC. He was saying they are not considered POWs under GC. As non-POWs they are still protected by CA3.

Aside from that, the federal anti-torture statute has nothing to do with GC. A person who is (for whatever reason) completely unprotected by GC is still protected by the federal anti-torture statute.

a preventable attack on US citizens that wasn't discovered during his term because he refused to use enhanced techniques


It would be nice if you could demonstrate that "enhanced techniques" ever got us valuable information that we could not have gotten via means that are legal, moral, and more effective.

Even if you could find such an instance, that wouldn't prove that torture is good policy. But it's interesting to note the distinct absence of such a proven instance. And it probably has something to do with the fact that torture is generally a poor way of getting information:

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.


pdf; See p. 111 in Adobe Reader. Emphasis added. Also see here.
4.27.2009 7:52pm
PC:
The road to hell is paved with good intentions....

Indeed. I think an investigation is warranted. From my point of view laws have been broken and the law breaking seems to go to the highest levels of government. I think talk about prosecutions are not warranted at this point.

If we do not investigate it means that government officials are held to a different standard of justice than the rest of us. Some people may think two classes of justice is okay, but I don't.
4.27.2009 7:52pm
Public_Defender (mail):
I agree that many liberals underestimate the difficulties in bringing criminal charges, but you miss several key points.

First, as others have pointed out, waterboarding is not on the EU list of non-torture. It is on the US list, however.

Second, you claim that the asserting "that Khalid Sheikh Mohammed was waterboarded for the purpose of obtaining statements which the interrogators knew would be false, but which would be used to support the Iraq War" is as equivalent to arguing that "the U.S. government perpetrated 9/11 with explosives." But take a look at the evidence that Sullivan and Rich point to from Maj. Paul Burney, a United States Army psychiatrist, who was there. He said that "'A large part of the time we were focused on trying to establish a link between Al Qaeda and Iraq and we were not being successful.' As higher-ups got more 'frustrated' at the inability to prove this connection, the major said, 'there was more and more pressure to resort to measures' that might produce that intelligence."

Third, Bybee is a federal judge, and "barely not criminal" is a pretty low bar for remaining on the federal bench. I expect better from the judges who hear my clients' cases than "not quite as bad as the Khmer Rouge."

What is needed is a Congressional inquiry with subpoena power where the questioning is led by counsel, not members (who just grandstand and don't ask good questions, especially not good follow-up questions). If the Bush Administration stayed within the law, they would likely come out looking better than they do now. If the Bush Administration violated the law, Bybee and others are going to be funding my private sector professional colleagues.
4.27.2009 7:52pm
zuch (mail) (www):
Dan Hamilton:
[zuch]: Actually, this prohibition applies to military affairs as well
Yes Zuch, If they want to surender you have to take them NO MATTER WHAT! You play that way. After you are defeated please tell people that WE were very moral, we always were NICE and LEGAL. Now wife put on your Burka and son study your Koran.
I think it high time for you to stop pissing your bed. The U.S. has always followed such a policy, from General Washington on, and it has presevered ... and prevailed.

If you are looking for an authoritarian regime, however, I'd say that implementing cruel and unusual punishment, CIDT, nay, even torture, might be a good first step. Good luck with that ... but you might be more successful in implementing such if you just follow the practises of the "bad guys". As for me, no thanks.

Cheers,
4.27.2009 7:55pm
jukeboxgrad (mail):
kopel:

the assertion that Khalid Sheikh Mohammed was waterboarded for the purpose of obtaining statements which the interrogators knew would be false, but which would be used to support the Iraq War


Are you seriously claiming that we weren't looking for confessions to sell the war? Torture was used to produce false confessions from al-Libi (link, link). And then Bush used those false confessions to sell the war. This is all well-documented. We stopped torturing al-Libi once he gave us the false confessions we needed.

Is the same true for the other people we tortured, like KSM? I see no reason to assume otherwise.
4.27.2009 7:59pm
zuch (mail) (www):
John Moore:
It's a bit dishonest to claim something is torture, and then invoke universal condemnation of torture (which doesn't really exist), when only a percentage of those who condemn "torture" would content these practices under the circumstances they were undertaken.
IIRC, someone asked people some interesting 'questions' in a poll not too long ago, and if the Bill of Rights were put up for popular approval, it might not even muster majority support. Then again, if you ask whether the earth in 6000 years old, you get a surprisingly large minority that say "yes". But that hardly is true of the entire world. 146 nations (including the U.S.) are parties to the CAT, which unequivocally rejects torture in all instances and under all circumstances (maybe the U.S. had its fingers crossed behind its back, but that hardly redounds to the credit of the U.S.).

Cheers,
4.27.2009 8:07pm
Mark E (mail):
Just remember all you commie libs as you start these POLITICAL PROSECUTIONS.

You will not always be in power.
4.27.2009 8:07pm
rosetta's stones:
Well, Zuch, Adler's polling post from Rasmussen tells us that the coercive interrogation issue doesn't quite cut along that neat little "RW" line you've drawn (emphasis mine):


Conservatives, by a 79% to 9% margin, believe the U.S. treats prisoners better than most other nations. Liberals are somewhat more evenly divided—46% say the U.S. treats prisoners more fairly while 30% disagree.
Sixty-seven percent (67%) of political moderates say the U.S. treats prisoners better than most other nations. Only 13% disagree.


Fifty-three percent (53%) of those who say the U.S. does not torture prisoners believe that torturing prisoners can lead to valuable information. Twenty-six percent (26%) disagree. However, among those who believe the U.S. does torture prisoners, only 36% believe it leads to valuable information. Forty-eight percent (48%) disagree.


It sure ain't "universal".
4.27.2009 8:14pm
rosetta's stones:

What is needed is a Congressional inquiry with subpoena power...


I agree with you, PD. But, they're dodging the issue. The congresscritters want this all to just go away.
4.27.2009 8:19pm
Xenocles (www):
Mark E-

We aren't all liberals.

Here's a quiz. Which option is better for a republic:
a) Government does what it wants in spite of the law
or b) Criminal acts by the government are punished, even if the punishment is initiated by an opposing party.

I know where we've been all my life...
4.27.2009 8:23pm
zuch (mail) (www):
Ben S.:
Zuch,

I take it from the "cheers" that you aren't American (that, or you recently spent a summer abroad and you fancy saying "cheers" to sound fashionable)....
Hmmm, no aficionado of sitcoms, are you? IIRC, that was a Bawhston skyline.... I say it because I feel like it. You have a problem with that, I'll leave you out of the next round.
... If so, this partially explains why you are badly out of touch with the reasons the U.S. went to war in Iraq. It was not because any direct links were alleged between 9/11 and Iraq.

Rather, it was that 9/11 demonstrated what happens when you let Islamic terrorists work behind the scenes unchecked....
Do tell. I missed that in all the foofrah in the build-up to the debacle that killed more Americans than did the terrorists on 9/11.
... Thus, in the post-9/11 world, the U.S. could no longer tolerate Islamic terrorism as a general matter. Iraq, due to its weapons program, refusal to play ball with international inspections, and sponsorship of rouge terrorist factions (along with Arafat and the PLO), became a prime target of the U.S.'s list of regimes to clean out. It was a problem that had lingered for years and the patience for such problems ran out with 9/11.
But as many people pointed out, Iraq didn't have WoMD. Some even pointed that out before the invasion. I opined at the time that Powell's U.N. presentation was the load'o'crap that it was subsequently shown to be. And if they did have such WoMD, we had inspectors on the ground to run them down and destroy them. Do try to keep up on the news, 'mkay?
So, to recap, no one with any sense believed there was a direct association between 9/11 and Iraq, and you are hacking at strawmen when you suggest this....
Except that the Dubya maladministration kept adverting to such in pushing for a war (so much so that 70+% polled thought this was true), kept trying to gin up evidence of such (including torturing al-Libi to say such, and then citing this "information" as proof, and now we hear, torturing others to try and show the same).
... Rather, it was simply that 9/11 taught us what happens when known terrorist entities are ignored....
Saddam, for all his evil, wasn't a terrorist.
... Clinton secured the U.N. resolution authorizing military force against Iraq; right or wrong, Bush just had the balls to use it.
Wrongly. But nonsense. Not to mention, once we had inspectors on the ground, there was no need for military action.
For supposedly reflecting the highest degree of intellectualism and sophistication, you libs sure act quite dense.
Really? Check the comment policy.

Cheers,
4.27.2009 8:24pm
Lucius Cornelius:
jukeboxgrad:

I believe that sleep deprivation can be torture.
4.27.2009 8:41pm
Bruce Hayden (mail):
But as many people pointed out, Iraq didn't have WoMD. Some even pointed that out before the invasion. I opined at the time that Powell's U.N. presentation was the load'o'crap that it was subsequently shown to be. And if they did have such WoMD, we had inspectors on the ground to run them down and destroy them. Do try to keep up on the news, 'mkay?
You won't give up, will you, trying to rewrite history? Let's go back and look at exactly who believed that Iraq did not have WMD on the day before we entered Iraq. (And, to be more accurate, Iraq did have WMDs, just not the large quantities of new WMDs expected).
4.27.2009 8:42pm
zuch (mail) (www):
Mark E:
Just remember all you commie libs as you start these POLITICAL PROSECUTIONS.

You will not always be in power.
If and when we think about whether to start violating the U.S. Code, we'll keep that in mind....

Cheers,
4.27.2009 8:43pm
zuch (mail) (www):
Bruce Hayden:
You won't give up, will you, trying to rewrite history?...
Pot calling the china cup black?

... Let's go back and look at exactly who believed that Iraq did not have WMD on the day before we entered Iraq....
OK, I'll go first. Blix and el Baradei. Your turn.
... (And, to be more accurate, Iraq did have WMDs, just not the large quantities of new WMDs expected).
Nope. Nothing functional or of significance.

Cheers,
4.27.2009 8:49pm
John Moore (www):
zuch:


146 parties to the CAT. But no accounting for RW Republicans in the Yoo Ess of Effin' Aye.... Fancy that....

Yeah, it's terrible that we won't sign on to a treaty so clearly obeyed by Belarus, China, Cuba, Egypt, Jordan, Pakistan, Russia, Saudi Arabia, Somalia, Sudan, Syria, and other shining lights of humane treatment of prisoners - all of whom are among that 146.

The CAT seems about as useful as the various UN Commissions on Human Rights.
4.27.2009 8:49pm
John Moore (www):

IIRC, someone asked people some interesting 'questions' in a poll not too long ago, and if the Bill of Rights were put up for popular approval, it might not even muster majority support. Then again, if you ask whether the earth in 6000 years old, you get a surprisingly large minority that say "yes".

So I guess we shouldn't let them vote, eh, and leave the important decisions to the elite?
4.27.2009 8:50pm
John Moore (www):

Saddam, for all his evil, wasn't a terrorist.

Oh really? Considering that his regime trained terrorists and supported them, then your logic would mean that Bin Laden isn't a terrorist either.
4.27.2009 8:54pm
Bob from Ohio (mail):

There's no impediment to indicting, trying, and convicting a sitting judge.


If you try to kill the king, kill the king.

One of the many reasons that I doubt there will be trials is the fact that unless there is a ironclad case, a failed prosecution of a federal judge will be a disaster for Justice. They won't risk it.

And if you don't go after Bybee, you can't go after Yoo, his subordinate, either.

And if you don't go after Bybee, you can't go after his successor either.

Well, you can but then it makes it seem even more like the political revenge it is.
4.27.2009 9:11pm
John Moore (www):
zuch


... (And, to be more accurate, Iraq did have WMDs, just not the large quantities of new WMDs expected).



Nope. Nothing functional or of significance.


Yes, functional - specifically binary sarin and mustard gas. Not in large quantities, but just how much sarin does a terrorist need if he's going to spray it into the air intake of a large office building? One binary shell worth? Two?

The idea that large quantities of WMD were the only justification for the war is wrong. The justification (related to WMD) was that terrorists could get their hands on it and use it for terrorist attacks. Terrorists don't need tons of sarin (or worse, of botulinum toxin, the seed stock for which was recovered after the war).

David Kay, after inspecting Iraq after the war, said that even though significant quantities of WMD were not found, he felt the situation regarding terrorism had been worse than he thought before the war. The reason: the sloppy control of WMD materials and WMD experts gave a significant probability that terrorists would just buy the stuff from them - in terrorist quantities, of course, not Soviet quantities.

Bush had no need to show an AQ connection (although a few tenuous ones did exist - just not terribly strong). He had many reasons to go to war with Iraq:

-WMD's (which every intelligence agency in the world thought were there). Saddam himself, after the highly reliable "gentle" interrogation so favored by the weenies on this board, admitted he had an active deception program to convince the world - in particular, the Iranians - that he did have large quantities of WMD's. His own generals believed he had them.

-Current state of war with US - the 1991 was was never concluded, and the Iraqis were daily violating the truce conditions by shooting at US aircraft

-Attempted assassination of a former US president

-Active support for international terrorism (not including AQ - yet)

and several more.

Furthermore, those who crow about WMD's not being found are engaged in static analysis. Saddam was about to break out of the sanctions regime (having bribed enough folks, especially at the UN, with the "Oil for Food" money), at which point he was free to resume his WMD activities. Remember, the AQ Khan network was selling nukes to anyone that wanted them. Libya had an active WMD program, and was an ally of Iraq. Although many deny it, it is no accident that Qhadaffi turned over his entire program to the US and Britain (not the IAEA, etc) the day after Saddam was captured. Do you suppose those weapons were going to stay in Libya?

BTW... regarding Iraq tenuous connection to AQ:

Iraqi intelligence operative Ahmad Hikmat Shakir Azzawi was -present at the January 2000 meeting in Malaysia that set the 9-11 plot in motion. He got his job at the Malaysian airport from an Iraqi Embassy employee (Raad al-Mudaris).
4.27.2009 9:11pm
jukeboxgrad (mail):
lucius:

I believe that sleep deprivation can be torture.


Thanks for your answer. Here's the follow up: let's say I shackle you in a standing position, in such a way that you are forced to stand continuously, and forced to stay awake continuously. Sometimes I adjust the chains so that you are forced to raise your hands over your head. I'm feeding you a partial starvation diet which consists only of liquids. You are wearing a diaper, and possibly nothing else. I also might be subjecting you to temperature extremes.

How much time has to elapse before you call that torture?

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

Yeah, it's terrible that we won't sign on to a treaty so clearly obeyed by …


Huh? "Won't sign on?" Too late. We already did. Wasn't it Reagan?

Considering that his regime trained terrorists and supported them


Troll would be a good word for someone who repeatedly makes false claims while ignoring the proof that's already been posted.

It's been proven that you're a reliable source of nonsense (more examples). What do you think you accomplish by posting more nonsense? You should have mercy on the innocent electrons you're slaughtering.
4.27.2009 9:17pm
jukeboxgrad (mail):
moore, I guess you think no one notices the way you repeatedly change your story. You recently said this:

torture … was used to extract false information to confirm Iraq-Al Qaeda links.


the Iraq war was about a set of dangers presented by the Saddam regime, where an Al Qaeda link was hardly critical.


It was pointed out to you that we were using torture to elicit false confessions for the purpose of linking Saddam to terrorists (and evidence of that is here, by the way). You denied that we would do such a thing because "an Al Qaeda link was hardly critical." You were saying that the "Saddam regime" was a threat by itself.

But that's what you said yesterday. This is what you just said today:

The idea that large quantities of WMD were the only justification for the war is wrong. The justification (related to WMD) was that terrorists could get their hands on it and use it for terrorist attacks.


Hmm, yesterday it wasn't important to connect Saddam to AQ. Today it is.

It turns out that the statement you just made is correct. The statement you made yesterday is incorrect. But what's interesting is the way you seem to have trouble making up your mind.

It's pretty obvious you're just making it up as you go along. I wonder what you're going to come up with next.
4.27.2009 9:35pm
jukeboxgrad (mail):
moore:

Yes, functional - specifically binary sarin and mustard gas. Not in large quantities


You seem to know the quantity of "functional … binary sarin" shells we found. Do you care to tell us the exact number? I think you know, and I think you would like us to not know.

The idea that large quantities of WMD were the only justification for the war is wrong.


There were two main ideas used to sell the war: that Saddam had WMD, and that Saddam was close to AQ. Trouble is, both those ideas were false. And false confessions elicited via torture played a role in both those sets of claims.

And speaking of "large quantities of WMD," do you recall what we were told he had? Let me remind you:

500 tons of mustard gas and nerve gas, 25,000 liters of anthrax, 38,000 liters of botulinum toxin, 29,984 prohibited munitions capable of delivering chemical agents, several dozen Scud missiles, gas centrifuges to enrich uranium, 18 mobile biological warfare factories, long-range unmanned aerial vehicles to dispense anthrax


(All the claims listed above, including all the numbers cited, came out of either Bush's mouth or Powell's mouth, or possibly both. Some further details here and here.)

Too bad we found next to nothing.

WMD's (which every intelligence agency in the world thought were there).


They expressed a lot of doubt. You know who expressed "absolute certainty?" Bush. Even though the underlying intel was very far from absolutely certain.
4.27.2009 9:47pm
geokstr (mail):

zuch:
"...146 nations (including the U.S.) are parties to the CAT, which unequivocally rejects torture in all instances and under all circumstances..."

Right, and about 135 of them laugh at us as we eat our own over interrogation techniques that are flat-out absolutely milquetoastish compared to what they do, as a matter of policy without any hesitation or fear of international condemnation whatsoever. The other 10 are countries that we'll never be in violent conflict with anyway.

Looks like the world has taken the lessons the left learned from Alinsky's Rules of Radicals to heart. Here one:

"RULE 4: "Make the enemy live up to its own book of rules."
...You can kill them with this because no one can possibly obey all of their own rules. (This is a serious rule. The besieged entity's very credibility and reputation is at stake, because if activists catch it lying or not living up to its commitments, they can continue to chip away at the damage.)"

If the "torture" issue wasn't so convenient, or doesn't work, count on it, the left will simply switch to another one, and another, until one sticks to the wall.
4.27.2009 10:24pm
PC:
So I guess we shouldn't let them vote, eh, and leave the important decisions to the elite?

In a democratic republic, yes. Much like your decision to protect the elites when they break democratically enacted laws, maybe you want to rethink our form of government?
4.27.2009 10:35pm
Barry P. (mail):
I believe that the US has been a force for good in the world.

LOL. It's been a force for its own good (just like every previous imperial power.) If anybody else got fucked over in the process of American greatness, well, tough titty.
4.27.2009 11:31pm
John Moore (www):

LOL. It's been a force for its own good (just like every previous imperial power.) If anybody else got fucked over in the process of American greatness, well, tough titty.

What an asinine and terribly uninformed statement!
4.27.2009 11:43pm
Andrew J. Lazarus (mail):
The torturers say they love America—but then they say they envy Belarus!

Makes no sense to me.
4.27.2009 11:53pm
jukeboxgrad (mail):
moore, did you ever remember that number? I mean the number of binary sarin shells that we found. Because it's a pretty impressive number, right? Are you going to let us in on the secret and tell us what it is? Because I wouldn't want to spoil the surprise and give it away. Surely I wouldn't be the one to do such a thing.

PS: I inserted a hint to help you remember.
4.28.2009 12:05am
John Moore (www):
Juke Box Grad and other purists...

I assume that you support prosecuting the CIA interrogators who "tortured" people based on the OLC memos.

Yes or no.
4.28.2009 12:19am
D K Warren (mail):
The Northern Ireland case is becoming well-known as a result of these OLC memos.

The European Court’s jurisprudence has evolved since 1978, however, and the leading European case on torture today is the Selmouni v. France judgment of July 28, 1999 (available at this link).

In that case, the European Court noted that a change in its jurisprudence was required because the Torture Convention:

. . . is a living instrument which must be interpreted in the light of present-day conditions” (see, among other authorities, the following judgments: Tyrer v. the United Kingdom, 25 April 1978, Series A no. 26, p. 15, § 31; Soering v. the United Kingdom, cited above, p. 40, § 102; and Loizidou v. Turkey, 23 March 1995, Series A no. 310, p. 26, § 71), the Court considers that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in the future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.

The European Court found that the acts complained of in Selmouni “were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating him and possibly breaking his physical and moral resistance” and held France to be in violation of the prohibition on torture because of its treatment of Selmouni (i.e. - he was dragged along by his hair; he was made to run along a corridor with police officers positioned on either side to trip him up; he was made to kneel down in front of a young woman to whom someone said “Look, you’re going to hear somebody sing”; one police officer then showed him his penis, saying “here, suck this,” before urinating over him; he was threatened with a blow lamp and then a syringe) (Selmouni v. France: para. 82).

Prior to that, in 1997 the Committee against Torture (one of the United Nations treaty bodies created to supervise State parties and the implementation of their obligations under the Torture Convention) also found that interrogation techniques other than waterboarding did constitute torture (many of the same techniques at issue in the Northern Ireland case). Israel was using them against Palestinian security detainees. Specifically:

Restraining in painful conditions;
Hooding under special conditions;
Sounding of loud music for prolonged periods;
Sleep depravation for prolonged periods;
Threats, including death threats;
Violent shaking; and
Using cold air to chill.

The Committee found that these tactics violated Israel’s obligations under the Torture Convention, representing a breach of Article 16 (cruel, inhuman, or degrading treatment) and constituting torture as defined by Article 1 – particularly when the methods are used in combination, which is often the case. Their conclusions and recommendations are available at this link.

The Selmouni case and the fact that the European Court’s jurisprudence has changed since 1978 is not mentioned in Mr. Bybee’s memo. As one author has mentioned, perhaps this information had been shipped to the Justice Department by ass and sail rather than more contemporary modes of transportation. See this book at p. 107.
4.28.2009 1:24am
jukeboxgrad (mail):
moore:

I assume that you support prosecuting the CIA interrogators who "tortured" people based on the OLC memos.


That's a really easy question. And I'll answer it on the condition that you finally answer the many questions you've been ducking repeatedly. Here, I'll review some of them for you.

How come waterboarding is in, but sodomy is out? (And 'just because,' the answer you've been hiding behind, is not a serious answer.)

Why is it torture when the Japanese do it, but not when we do it?

If a future enemy waterboarded a US soldier 183 times, using the same procedure we did, would you refrain from accusing that enemy of torture?

How many binary sarin shells did we find?

I left out a bunch, but you can start with those.

And I'll give you my answer first, because I'm sure I can count on you to hold up your end, and to give my questions as much respect as I'm giving yours.

The question you raised is being discussed in a new thread, here. My answer is the same as Obama's: we should not prosecute CIA torturers who were following the limits described in the OLC memos (even though the Nuremberg Trials established that 'just following orders' is not a valid defense for war crimes).

PS: I have a feeling you haven't actually read the memos, and you therefore are ignorant of an important fact. It seems that the limits described in the OLC memos were not actually followed very carefully. This is documented in the memos themselves. Which means that some or all of the CIA torturers should be prosecuted, because some or all of the CIA torturers did not respect the limits articulated in the OLC memos (even though those limits themselves were past the line of torture).

Your turn.
4.28.2009 1:36am
Andrew J. Lazarus (mail):
Hooding under special conditions;
I believe this refers to hoods whose insides have been smeared with urine and/or feces. I don't believe hooding in general has ever been described as torture.
4.28.2009 1:45am
John Moore (www):

The question you raised is being discussed in a new thread, here. My answer is the same as Obama's: we should not prosecute CIA torturers who were following the limits described in the OLC memos (even though the Nuremberg Trials established that 'just following orders' is not a valid defense for war crimes).

And here I thought you guys would let the a judge and jury decide whether a crime was committed.

According to you guys, these people engaged in torture, which, as you have clearly stated, is a terrible crime for which there is no prosecutorial discretion.

Hypocrits.
4.28.2009 2:22am
PC:
According to you guys, these people engaged in torture, which, as you have clearly stated, is a terrible crime for which there is no prosecutorial discretion.

Hypocrits.


Since you seem to view this through partisan glasses I can see your confusion.

Crimes have been admitted to. Due to that we, as a nation, should look into those admissions and see if they merit prosecution. The alternative is that we let the political elite commit crimes, admit to it and go free for the sake of "reconciliation" (or something).

If this were a regular criminal case a prosecutor could indict the suspects involved based off their own statements. The subsequent investigation might uncover mitigating circumstances and the suspects might not be charged. But this isn't a regular case.

This case involves former top government officials, so the partisans will do their best to make this about persecution rather than investigation. No crime is too great to ignore. Terms like retribution and banana republic will be brought up to deflect any investigation into law breaking.

It's politics, it's a blood sport. Whatever.

I have a bigger problem with two systems of justice than I do with a hyped up partisan divide.
4.28.2009 3:03am
jukeboxgrad (mail):
moore:

And here I thought you guys would let the a judge and jury decide whether a crime was committed.


You're being even more incoherent than usual. And that's saying a lot.

Where did I say I didn't want to "let the a judge and jury decide whether a crime was committed?" You asked me a question about prosecuting certain people. I answered your question. I envision certain people being prosecuted. Do you understand what that word means? In our system, prosecution can lead to a stage where "a judge and jury decide whether a crime was committed." We have a word for that: 'trial.'

Why would I suggest prosecution if I didn't envision a stage where we "would let the a judge and jury decide whether a crime was committed?"

According to you guys, these people engaged in torture, which, as you have clearly stated, is a terrible crime for which there is no prosecutorial discretion


There is indeed "no prosecutorial discretion" in the sense of 'ignore the matter entirely.' Because enough facts are already known to strongly suggest that crimes were committed. However, that doesn't mean everyone in sight needs to be prosecuted. And the question of prosecuting CIA torturers who actually followed the OLC memos in good faith (and it's not clear that there is anyone actually in this category) is a close call. And it's being discussed in the other thread I mentioned.

I guess you're going to continue ducking all those questions, after all. Even though I answered yours. What a surprise.

Hypocrits.


One of many, many claims you've made that are completely unencumbered by any semblance of proof.
4.28.2009 3:07am
Joe The Plumber:
Crimes have been admitted to.

Um, by whom? Name 1 person.
4.28.2009 9:55am
Joe The Plumber:
If a future enemy waterboarded a US soldier 183 times, using the same procedure we did, would you refrain from accusing that enemy of torture? '

Well, first of all, KSM is not, and never was a "solider"

But I think you should go on pretending there is some sort of apples-to-apples comparison here.

March on in your silliness now...
4.28.2009 9:57am
Joe The Plumber:
And false confessions elicited via torture played a role in both those sets of claims.

What a hysterical lie.

The idea that "torture" was used to further the idea Saddam had WMD is simply mind boggling stupidity.
4.28.2009 9:59am
rosetta's stones:

... Let's go back and look at exactly who believed that Iraq did not have WMD on the day before we entered Iraq....




Zuch:
OK, I'll go first. Blix and el Baradei. Your turn.


Well, Zuch, it's true that Blix's inspectors found no smoking gun pre-war, but even he predicted before the war that the coalition would find WMD, and I saw him do so in an interview, even if he slipped and slid both before and after that. He knew the limitations of his program's abilities, and knew what Sadaam was capable of, which brought him to the obvious conclusion.

And you too casually dismiss the Iraqi nuke program, soon to be restarted when sanctions were lifted. Khadaffi turned state's evidence immediately after Sadaam got dragged out of that spider hole. All of Khadaffi's nuke program is sitting down in Oak Ridge, Tennessee even as we speak... lock, stock and centrifuge... including the Chicom nuke warhead designs. We had irrefutable evidence against him, and Khadaffi submitted because Blair and Bush likely came to him, with blood on their sword, and told him "You're next". It's a rough world out there.

And as for active WMD in Iraq, you forgot about the biggest WMD find of them all.
4.28.2009 10:13am
Floridan:
If waterboarding isn't torture, would it be OK for local police to use that technique?

How about on a 16-year-old to get information on who sold him alcohol?

No permanent damage and we may be able to solve a lot of crimes this way.
4.28.2009 11:33am
Joe The Plumber:
If waterboarding isn't torture, would it be OK for local police to use that technique?

Again, I think you should go on pretending there is some sort of apples-to-apples comparison here.
4.28.2009 11:42am
Connecticut Lawyer (mail):
zuch,

You mean we've been at war? Who knew?

When you look back at the wars American has fought and the horrible, terrible things that we did to win those wars - Lincoln's suspension of habeas corpus, Sherman's March to the Sea, Roosevelt's firebombing of Dresden and Tokyo, Truman's nuking of Hiroshima and Nagasaki, Johnson's Phoenix program in Vietnam - and compare those acts with the piddly events here at issue, it's very hard not to conclude that there are some ulterior motives at hand in those seeking to levy punishment on the former members of the Bush Administration for their conduct of this war. I said above what I think those motives are and having read the various postings here, I would add the desire to punish the Bush Administration for the Iraq War. But I do not think that you or the other advocates of prosecution are acting in good faith.

Tenno hekai banzai!
4.28.2009 11:47am
Anderson (mail):
Just wanted to tip the hat to Flyerhawk, who has no problem distinguishing the policy question about prosecutions/investigations from the moral question about whether we tortured people.

Given that even Jonah Goldbergs (to whom I do not compare Flyerhawk!) are admitting that we tortured, it seems increasingly silly to argue otherwise. We can have a good-faith disagreement about what to do with our torturers. It's really difficult to attribute good faith to anyone who thinks what we did to KSM and Zubaydah wasn't torture.
4.28.2009 11:50am
Connecticut Lawyer (mail):
Anderson,

If that's so, then why has Congress declined to pass a law outlawing waterboarding specifically?
4.28.2009 12:05pm
zuch (mail) (www):
Joe the Plumber:
[JBG]: If a future enemy waterboarded a US soldier 183 times, using the same procedure we did, would you refrain from accusing that enemy of torture? '
Well, first of all, KSM is not, and never was a "solider"
Care to make an effort to read the question? Thanks in advance. I'd note for any particularly obtuse people that the CAT and 18 USC § 2340 et seq. do not apply only to detained soldiers. If you want to insist that these do not apply to the treatment of KSM, you'll have to prove that KSM is not a "person".

Cheers,
4.28.2009 12:33pm
zuch (mail) (www):
Joe the Plumber:
The idea that "torture" was used to further the idea Saddam had WMD is simply mind boggling stupidity.
Even before the recent disclosures about this, we had the al-Libi case:
The problem of false intelligence had already been demonstrated by the handling of another al-Qaeda captive, Ibn al-Shaykh al-Libi, who had responded to threats of torture by claiming an operational link between Hussein’s government and al-Qaeda. It was exactly the kind of information that the Bush administration had been seeking.

A June 2002 CIA report, which was dubbed the “Murky” paper, cited claims by al-Libi that Iraq had “provided” unspecified chemical and biological weapons training for two al-Qaeda operatives. Al-Libi’s information also was inserted into a November 2002 National Intelligence Estimate.

In January 2003, another CIA paper expanded on al-Libi’s claims of an Iraqi-al-Qaeda connection, saying that “Iraq – acting on the request of al-Qa’ida militant Abu Abdullah, who was Muhammad Atif’s emissary – agreed to provide unspecified chemical or biological weapons training for two al-Qa’ida associates beginning in December 2000.”

By Feb. 11, 2003, as the countdown to the U.S. invasion progressed, CIA Director Tenet began treating al-Libi’s assertions as fact. At a Senate Intelligence Committee hearing, Tenet said Iraq “has also provided training in poisons and gases to two al-Qa’ida associates. One of these associates characterized the relationship he forged with Iraqi officials as successful.”

But the CIA’s confidence about al-Libi’s information went against the suspicions voiced by the Defense Intelligence Agency. “He lacks specific details” about the supposed training, the DIA observed. “It is possible he does not know any further details; it is more likely this individual is intentionally misleading the debriefers.”

The DIA’s doubts proved prescient. In January 2004, al-Libi recanted his statements and claimed that he had lied because of both actual and anticipated abuse, including threats that he would be sent to an intelligence service where he expected to be tortured.

Al-Libi said he fabricated “all information regarding al-Qa’ida’s sending representatives to Iraq to try to obtain WMD assistance,” according to a Feb. 4, 2004, CIA operational cable. “Once al-Libi started fabricating information, [he claimed] his treatment improved and he experienced no further physical pressures from the Americans.”
Please do try to keep up on your reading (and that means places other than WhirledNutsDaily and LittleFreepGoofballs).

Cheers,
4.28.2009 12:41pm
zuch (mail) (www):
rosetta's stones:
[R'sS]... Let's go back and look at exactly who believed that Iraq did not have WMD on the day before we entered Iraq....
[zuch]: OK, I'll go first. Blix and el Baradei. Your turn.
Well, Zuch, it's true that Blix's inspectors found no smoking gun pre-war, but even he predicted before the war that the coalition would find WMD, and I saw him do so in an interview, even if he slipped and slid both before and after that. He knew the limitations of his program's abilities, and knew what Sadaam was capable of, which brought him to the obvious conclusion.
It may well be that Blix thought there were WoMD (perhaps based on the faulty [and manufactured] U.S. "intelligence") before he got on the ground. But you'd think that a rational person might look at the situation once he actually looked at the "evidence" and checked it out. As one of the UNMOVIC inspectors said about the U.S. "intelligence", it was "garbage, garbage, and more garbage" (albeit some reports said they used a more scatalogical term). In one case of a "mobile missile site" the inspectors found literally chicken-sh*t, not WoMD.
And you too casually dismiss the Iraqi nuke program, soon to be restarted when sanctions were lifted. Khadaffi turned state's evidence immediately after Sadaam got dragged out of that spider hole. All of Khadaffi's nuke program is sitting down in Oak Ridge, Tennessee even as we speak... lock, stock and centrifuge... including the Chicom nuke warhead designs. We had irrefutable evidence against him, and Khadaffi submitted because Blair and Bush likely came to him, with blood on their sword, and told him "You're next". It's a rough world out there.
A pile'o'crap. Where'd this "Chicom nuke warhead designs" come from? Flying monkey's a$$es? You really need to update your reading lists. Duelfer, Kay, and even Dubya have bowed on the WoMD issue. Time for you to hang it up.
And as for active WMD in Iraq, you forgot about the biggest WMD find of them all.
That's pretty pathetic. Scraping the bottom of the barrel, are you?

Cheers,
4.28.2009 12:55pm
zuch (mail) (www):
P.S:

rosetta's stones:
[R'sS]... Let's go back and look at exactly who believed that Iraq did not have WMD on the day before we entered Iraq....
This was your statement (emphasis added). Which is why Blix's earlier opinions are irrelevant.

Cheers,
4.28.2009 12:58pm
jukeboxgrad (mail):
joe:

Crimes have been admitted to.


Um, by whom? Name 1 person.


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

Well, first of all, KSM is not, and never was a "solider"


Well, first of all (as zuch pointed out), you're not bothering to comprehend the question. Please assume, for the sake of argument, that I think everything we did to KSM is the height of patriotism and morality, and that we should have done much worse. The question still remains: if a future enemy waterboarded a US soldier 183 times, using the same procedure we did, would you refrain from accusing that enemy of torture?

Is it that you lack the intellect to grasp the question, or that you lack the courage to offer an honest answer?

But I think you should go on pretending there is some sort of apples-to-apples comparison here.


The "pretending" is completely in your imagination. There is no question that the hypothetical enemy (in my question) is doing something very bad. And I have asked you to assume, for the sake of argument, that I believe that what we did to KSM is something very moral and appropriate. There is nevertheless still a question about the words we use to describe things.

So are you going to answer the question, or not?

The idea that "torture" was used to further the idea Saddam had WMD is simply mind boggling stupidity.


I see that you're very confused about al-Libi. You can get some help via here and here.

================
conn lawyer:

When you look back at the wars American has fought and the horrible, terrible things that we did to win those wars - Lincoln's suspension of habeas corpus, Sherman's March to the Sea, Roosevelt's firebombing of Dresden and Tokyo, Truman's nuking of Hiroshima and Nagasaki, Johnson's Phoenix program in Vietnam …


English translation: 'we've (allegedly) ignored war crimes in the past, so we might as well keep ignoring them.'

If that's so, then why has Congress declined to pass a law outlawing waterboarding specifically?


You're making reference to something called the Kennedy amendment. If this event (the rejection of the Kennedy amendment, by a GOP Congress) made waterboarding legal, then it also legalized burning and electric shock. Details here.

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

Given that even Jonah Goldbergs … are admitting that we tortured


Don't forget Hemingway:

I am not trying to suggest that waterboarding isn't torture. Those opposed to waterboarding should be content to argue the indisputable fact that it was considered a crime as practiced by the Japanese.


They're dropping like flies. People like joe the plumber are disoriented, and having trouble keeping up.
4.28.2009 1:28pm
zuch (mail) (www):
Connecticut Lawyer:
When you look back at the wars American has fought and the horrible, terrible things that we did to win those wars - Lincoln's suspension of habeas corpus, Sherman's March to the Sea, Roosevelt's firebombing of Dresden and Tokyo, Truman's nuking of Hiroshima and Nagasaki, Johnson's Phoenix program in Vietnam - ...
Yes, war is hell. What is different is that those rendered hors de combat (and shipped half way around the world) are no longer legitimate targets. Some may quibble WRT the level of destruction in some of these prior incidents and say that they are also war crimes, and for some incidents there may be a colourable case for such. As for Operation Phoenix, I think that was a war crime ... and there's plenty of support for that assertion.

Can you say "tu quoque"?
... and compare those acts with the piddly events here at issue, it's very hard not to conclude that there are some ulterior motives at hand in those seeking to levy punishment on the former members of the Bush Administration for their conduct of this war....
Asking that the law be obeyed is hardly remarkable. Why you have a problem with such is beyond me. And if we can root out those responsible for Operation Phoenix (and there's no SOL issues), I have no problem going after them as well.
I said above what I think those motives are and having read the various postings here, I would add the desire to punish the Bush Administration for the Iraq War. But I do not think that you or the other advocates of prosecution are acting in good faith.
I think you need to "put up or shut up" before you start slinging such accusations. I mean real evidence that I, or others here, have insisted that the past transgressions should be forgiven but are intent on punishing the present ones, along with actual evidence we're not acting in "good faith". This is a rather serious accusation, and I take offence.

But FWIW, the Dubya maladministration should be punished for the travesty and horror (not to mention cost) of the Iraq war. This should be an albatross around their neck, and keep people who pushed for it, not to mention carried it out, out of any positions of power in government ever again, IMNSHO. Not only illegal, but insanely stoopid; both adequate attributes to disqualify anyone from positions of responsibility. But if they also tortured, or otherwise broke the law, they should also be prosecuted.

Cheers,
4.28.2009 1:34pm
zuch (mail) (www):
Connecticut Lawyer:
If that's so, then why has Congress declined to pass a law outlawing waterboarding specifically
"Objection, your Honour, asked and answered...."

Cheers,
4.28.2009 1:36pm
rosetta's stones:
Um, Zuch, the entire inventory list of Khadaffi's nuke program is likely posted somewhere on the internet, including the Chinese warhead designs I'm sure. That equipment, files, all of it... is sitting down in Oak Ridge, Tennessee, as mentioned.

And we got that because Sadaam got taken down.
4.28.2009 1:36pm
Connecticut Lawyer (mail):
Zuch,

1) Last time I checked, the Dems had control of the House and the Senate, yet they have not passed any legislation specifically outlawing waterboarding. Perhaps you care to explain why?

2) Do you think the US has committed "war crimes" the past? Which do you think was a worse crime: waterboarding KSM until he gave up operations information about AQ, or locking up tens of thousands of Japanese Americans for years for the offense of being Japanese by ancestry? My point is only that your desire for retribution in this instance is dishonest and in bad faith. That's all I'm saying.

Have a nice day.
4.28.2009 1:38pm
Floridan:
CL: "Roosevelt's firebombing of Dresden"

FWIW, the bombing of Dresden was primarily a British operation -- Churchill gets the blame.
4.28.2009 1:43pm
zuch (mail) (www):
rosetta's stones:
Um, Zuch, the entire inventory list of Khadaffi's nuke program is likely posted somewhere on the internet, including the Chinese warhead designs I'm sure. That equipment, files, all of it... is sitting down in Oak Ridge, Tennessee, as mentioned.
With a Laurie Mylroie or Peter Hoaxstra by-line, I'm sure. You know, if I just Google it, I can find stuff on the web proving that the earth is flat, 6000 years old, and that the Apollo lunar landing missions were faked. But feel free to trot out any "authoritative" sources you have for this information.

You know, if Saddam did have nucular weapons, programs, etc., the Dubya maladministration would be trotting it out for all to see, saying, "Seeeeee!!!! I tooolllddd you sooooo!!!! We were right." Instead, they have said, "We were wrong about the WoMD. But we needed to go in anyway. We couldn't take the chance, and besides we wanted to spread 'democracy' and what about them incubators, huh?!?!"
And we got that because Sadaam got taken down.
Nonsense. Blix and el-Baradei were getting co-operation ... too much co-operation for Dubya's tastes, so Dubya had to go in before they could show without a shadow of a doubt that there was no reason to invade (and lose $1G and more soldiers' lives than were lost on 9/11).

Cheers,
4.28.2009 2:26pm
zuch (mail) (www):
Connecticut Lawyer:
Zuch,

1) Last time I checked, the Dems had control of the House and the Senate, yet they have not passed any legislation specifically outlawing waterboarding. Perhaps you care to explain why?
"Asked and answered." Scroll up.
2) Do you think the US has committed "war crimes" the past?...
"Asked and answered." Scroll up.
... Which do you think was a worse crime: waterboarding KSM until he gave up operations information about AQ, or locking up tens of thousands of Japanese Americans for years for the offense of being Japanese by ancestry?...
"Objection, your Honour. Irrelevant (not to mention "asked and answered")." And here's a bit more for you. You know, for a lawyer, you doan read to gud.
... My point is only that your desire for retribution in this instance is dishonest and in bad faith. That's all I'm saying.
So you say. Unsupported allegations are a dime a dozen. Care to trot out proof of your slur? If not, we'll just dismiss it as an unsupported (and ignorant) allegation, and let the fair reader decide what to make of it.

Cheers,
4.28.2009 2:37pm
John Moore (www):
Zuch writes:

A pile'o'crap. Where'd this "Chicom nuke warhead designs" come from? Flying monkey's a$$es? You really need to update your reading lists. Duelfer, Kay, and even Dubya have bowed on the WoMD issue. Time for you to hang it up.

Maybe you need to update your reading list to include this.

AQ Khan was given a Chinese nuke design (probably because China wanted Pakistan as a strategic nuclear counter to India). The AQ Khan WMD network provided those, along with lots of other stuff to Libya (and Iran and Malaysia). He was certainly ready to sell the same to Saddam, who had far more capability (money, scientists, past experience) than Qhadaffi to make use of the technology, and was about to break out of the sanctions regime (good luck disputing that).

The AQ Khan network was discovered as a result of the Iraq war. Iran, under intense pressure (they didn't want to be next) gave up crucial information that led many to suspect Khan. Libya gave it all up when Qhadaffi suddenly surrendered his program after Saddam was pulled out of the cesspit.

Had this not happened, Libya and several other notorious countries by now might have made nukes, and even sold one or more to Al Qaeda.

The danger is real.

Cheers
4.28.2009 3:23pm
John Moore (www):
Oh, and Zuch, if you didn't like that post, check out this story from that notorious right wing Bush supporting paper, the Washington Post. I guess you weren't paying attention to the WMD issue.
4.28.2009 3:26pm
martinned (mail) (www):
Heller replies:


Torture, Necessity, Self-Defense — and John Yoo’s Fundamental Dishonesty
by Kevin Jon Heller

Dave Kopel has a post today at The Volokh Conspiracy in which he dusts off John Yoo’s argument in the infamous 14 March 2003 memo that a CIA interrogator prosecuted for torture would be able to invoke the defenses of necessity and self-defense. I am not interested in responding to Kopel’s post, which grossly mischaracterizes my position on torture prosecutions and — far worse — identifies me as an Australian and spells my name wrong. Instead, I want to focus on two moments in Yoo’s argument that illustrate the fundamental dishonesty of his legal analysis.

We can begin with necessity. There are many reasons to question whether a CIA interrogator could raise a necessity defense: he would have a difficult time arguing that it was a response to a “clear and imminent danger” of a terrorist attack; a reasonable person would be unlikely to consider torture an effective means of obtaining information; the interrogator could have relied on legal avenues to avert the purported harm, such as non-coercive interrogation. Most problematic of all, however, is the fact that the necessity defense applies — to quote § 3.02 of the Model Penal Code — only where “a legislative purpose to exclude the justification claimed does not otherwise plainly appear.” A statement of legislative purpose to exclude a necessity defense more plain than Article 2(2) of the Convention Against Torture is difficult to imagine: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.”

Here is where Yoo’s dishonesty comes in. Yoo is fully aware that Article 2(2) dooms the necessity defense if it has been incorporated into US law, so he simply argues that it has not been incorporated (p. 76):


CAT contains an additional provision that “no exceptional circumstances whatsover, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” CAT art. 2.2. Given that Congress enacted 18 U.S.C. §§ 2340-2340A in light of CAT, Congress presumably was aware of this provision of the treaty, and of the definition of the necessity defense that allows the legislature to provide for an exception to the defense, see Model Penal Code § 3.02(b), yet Congress did not incorporate CAT article 2.2 into section 2340. Nor did Congress amend any of the generally applicable criminal statutes to eliminate this defense in cases of torture. Given that Congress omitted CAT’s effort to bar a necessity or wartime defense, we read section 2340 and the federal criminal statutes applicable to the special maritime and territorial jurisdiction as permitting the defense.



There is only one problem with that argument — it directly contradicts the official position of the United States. Consider the following statement made by the State Department in its Initial Report to the Committe Against Torture on the US’s implementation of the Torture Convention:


Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.



That report was filed in 1999, before 9/11. So now consider the Bush administration’s position in its Second Periodic Report to the Committee Against Torture, filed four years after 9/11:


6. The United States is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture. This is a longstanding commitment of the United States, repeatedly reaffirmed at the highest levels of the U.S. Government.

7. All components of the United States Government are obligated to act in compliance with the law, including all United States constitutional, statutory, and treaty obligations relating to torture and cruel, inhuman or degrading treatment or punishment. The U.S. Government does not permit, tolerate, or condone torture, or other unlawful practices, by its personnel or employees under any circumstances. U.S. laws prohibiting such practices apply both when the employees are operating in the United States and in other parts of the world.

8. The legal and policy framework through which the United States gives effect to its Convention undertakings has not changed fundamentally since the Initial Report.



I suppose it’s possible that Yoo was completely unaware of the official US position concerning Article 2(2) and didn’t bother to check before issuing a formal OLC memo that concluded a CIA interrogator could invoke the necessity defense. If so, his professional malpractice is staggering. I think it is far more likely, however, that he knew his argument was inconsistent with the position of his own administration but simply didn’t care, taking a calculated risk that his memo would never be subjected to public scrutiny. If so, his dishonesty is staggering.

Nor was his legal analysis of self-defense any better. Once again there is an imminence problem: except in the fanciful “ticking time-bomb” scenario, it is difficult to see how a CIA interrogator could persuasively argue that the torture of a detainee was necessary to prevent an imminent terrorist attack. Even if he could, however, the self-defense argument would still have a fatal flaw: the “defensive” force would not have been directed against the individual(s) threatening the unlawful attack. An individual can use force to defend a third party, but he cannot use force against a third party — the force must be directed against the source of the attack.

Once again, Yoo recognizes the problem — and “answers” it:


Self-defense as usually discussed involves using force against an individual who is about to conduct the attack. In the current circumstances, however, an enemy combatant in detention does not himself present a threat of harm. He is not actually carrying out the attack; rather, he has participated in the planning and preparation for the attack, or merely has knowledge of the attack through his membership in the terrorist organization. Nonetheless, some leading scholarly commentators believe that interrogation of such individuals using methods that might violate section 2340A would be justified under the doctrine of self-defense, because the combatant by aiding and promoting the terrorist plot “has culpably caused the situation where someone might get hurt. If hurting him is the only means to prevent the death or injury of others put at risk by his actions, such torture should be permissible, and on the same basis that self-defense is permissible.” Michael S. Moore, Torture and the Balance of Evils, 23 Israel 1. Rev. 280, 323 (1989) (symposium on Israel’s Landau Commission Report). See also Alan M. Dershowitz, Is It Necessary to Apply “Physical Pressure” to Terrorists — and to Lie About It?, 23 Israel 1. Rev. 192, 199-200 (1989). Thus, some commentators believe that by helping to create the threat of loss of life, terrorists become culpable for the threat even though they do not actually carry out the attack itself.



It is not difficult to critique the substance of this argument, but such a critique is unnecessary. Far more problematic is what Yoo cites in defense of this radical revision of traditional self-defense doctrine, which even he acknowledges is radical: two law review articles written by extremely conservative criminal-law scholars. That’s it. Not a US case. Not a foreign case. Not an international case. Not a ratio. Not an obiter. Nothing. According to Yoo, CIA interrogators can claim self-defense because two criminal-law scholars believe that traditional self-defense doctrine is inadequate in the post-9/11 era. Again, the dishonesty of Yoo’s legal “analysis” is staggering.

I am glad that Kopel is trying to rekindle debate over necessity and self-defense. Perhaps this time we can bury the mistaken idea that a CIA interrogator could rely on those defenses once and for all.
4.28.2009 3:28pm
jukeboxgrad (mail):
cl:

Last time I checked, the Dems had control of the House and the Senate, yet they have not passed any legislation specifically outlawing waterboarding. Perhaps you care to explain why?


They have also not passed legislation specifically outlawing the use of electric shock applied to your testicles. Perhaps you care to explain why?

Here's a hint: those things are already illegal. A law against torture cannot and should not attempt to enumerate every possible method of torture. Many laws follow this pattern: they set a general standard, and they do not attempt to make a laundry list of every possible way of violating that standard. If you use your imagination, you might even be able to think of reasons why it's done this way.

Which do you think was a worse crime: waterboarding KSM until he gave up operations information about AQ, or locking up tens of thousands of Japanese Americans for years for the offense of being Japanese by ancestry?


Both were very bad. How does the reality of the latter turn into a reason to ignore the former?

And speaking of "until he gave up operations information about AQ:" there is evidence that we were doing better before we started torturing.

And there is also evidence that we weren't really after "operations information about AQ" for the purpose of stopping the next attack. Rather, it seems that we were after false confessions for the purpose of selling the war (and keeping it sold). See here, here, here and here.

And I wonder what "operations information" you're thinking of. The stuff that requires a belief in time travel?
4.28.2009 3:58pm
zuch (mail) (www):
John Moore:

[zuch]:A pile'o'crap. Where'd this "Chicom nuke warhead designs" come from? Flying monkey's a$$es? You really need to update your reading lists. Duelfer, Kay, and even Dubya have bowed on the WoMD issue. Time for you to hang it up.
Maybe you need to update your reading list to include this.
Libya is not Iraq. Just a small FYI.
AQ Khan was given a Chinese nuke design (probably because China wanted Pakistan as a strategic nuclear counter to India)....
You're still making things up. Your link says no such thing.
The AQ Khan WMD network provided those, along with lots of other stuff to Libya ...
Yes. I have no problem with serious sanctions on Pakistan. Instead we gave them F-16s. Stoopid, stoopid. Guess who did that?
... (and Iran and Malaysia)
Your cite for this?!?!?.
He was certainly ready to sell the same to Saddam, who had far more capability (money, scientists, past experience) than Qhadaffi to make use of the technology, and was about to break out of the sanctions regime (good luck disputing that).
That's not what you claimed: "All of Khadaffi's nuke program is sitting down in Oak Ridge, Tennessee even as we speak... lock, stock and centrifuge... including the Chicom nuke warhead designs." FWIW, I could probably put together a reasonable atomic bomb design in a month or so ("Little Boy" gun-type U-235 device). Whoopdedoo.
The AQ Khan network was discovered as a result of the Iraq war.
No. This simply isn't true. You're just making stuff up (or spouting stuff that others have made up, more likely).
Had this not happened, Libya and several other notorious countries by now might have made nukes, and even sold one or more to Al Qaeda.
We rolled up the A.Q. Kahn proliferation ring, and got Libya to drop its program ... without invading Libya.
The danger is real.
Then change your diaper. Get clean ones; it will be a long haul, even if we do get through the CTBT that the Republicans torpedoed (and recover from the outing of our CIA assets that were working to control nuclear proliferation).

Cheers,
4.28.2009 5:25pm
John Moore (www):

Libya is not Iraq. Just a small FYI.

Never said it was. It is, however, quite relevant to those of us who understood then and now that you have to look at the possibilities of your enemies, not their instant capabilities. Go back and read for comprehension.



AQ Khan was given a Chinese nuke design (probably because China wanted Pakistan as a strategic nuclear counter to India)....



You're still making things up. Your link says no such thing.


You dispute that China gave Pakistan the nuke design?

Yes. I have no problem with serious sanctions on Pakistan. Instead we gave them F-16s. Stoopid, stoopid. Guess who did that?

Based on this, your understanding of international realities is pathetic.

That's not what you claimed: "All of Khadaffi's nuke program is sitting down in Oak Ridge, Tennessee even as we speak... lock, stock and centrifuge... including the Chicom nuke warhead designs." FWIW, I could probably put together a reasonable atomic bomb design in a month or so ("Little Boy" gun-type U-235 device). Whoopdedoo.

No, I didn't claim that. If you're gonna insist on cites, get your act together.

The design was for an *implosion* nuke - in complete detail. Good luck doing that in a month. Implosion nukes allow for the use of much less HEU, or the use of Pu, making them favored by everyone who has mastered the very difficult technology. They also allow a much higher yield in a missile warhead sized package.

But hey, what you worry!


We rolled up the A.Q. Kahn proliferation ring, and got Libya to drop its program ... without invading Libya.

Yeah, it was mere coincidence that Qhadaffi rolled over unexpectedly (per WAPO) and handed us all his stuff immediately after we captured Saddam. There couldn't possibly be a connection. Likewise, there couldn't possibly be a connection between our having massive forces in Iraq and Iran's suddenly becoming (temporarily) more compliant with IAEA and releasing some of their nuke info.

no way, there couldn't possibly be a connection.

And this from the same folks who blame Abu Ghraib's atrocities on the CIA interrogation techinques.


it will be a long haul, even if we do get through the CTBT that the Republicans torpedoed

You mean, another treaty that the good guys would adhere to (in fact, we do adhere to it), but the bad guys (hello, ever heard of little Kim?) will ignore? Great idea, that.


(and recover from the outing of our CIA assets that were working to control nuclear proliferation).

Oh, so the CIA stopped working to control nuclear proliferation under Bush? Cite?
4.28.2009 5:41pm
zuch (mail) (www):
John Moore:
[JM]: AQ Khan was given a Chinese nuke design (probably because China wanted Pakistan as a strategic nuclear counter to India)....
[zuch]: You're still making things up. Your link says no such thing.
You dispute that China gave Pakistan the nuke design?
I said your link said no such thing. Therefore, I think you're making sh*te up. Out with a cite for this, otherwise I'll ignore it as the unsupported opinion of someone who is not in a position to know.
[zuch]: Yes. I have no problem with serious sanctions on Pakistan. Instead we gave them F-16s. Stoopid, stoopid. Guess who did that?
Based on this, your understanding of international realities is pathetic.
How so?!?!? Do you think it was good to reward a nuclear proliferator by giving them delivery vehicles for nukes?
[zuch]: That's not what you claimed: "All of Khadaffi's nuke program is sitting down in Oak Ridge, Tennessee even as we speak... lock, stock and centrifuge... including the Chicom nuke warhead designs." FWIW, I could probably put together a reasonable atomic bomb design in a month or so ("Little Boy" gun-type U-235 device). Whoopdedoo.
No, I didn't claim that. If you're gonna insist on cites, get your act together.
My apologies; that was "rosetta's stones". Sorry I was unable to tell the two of you apart (when you jumped in to his defence). Mea culpa. I will await his answer then. But the fact remains that no one has said that Saddam Hussein had nuke weapons plans, Chinese or other. Not that they're hard to come by ... Clinton, for instance, had a bit of a faux pas in handing over nuke designs to Iran in an effort to lead them astray. The plans were purposely flawed ... but the chosen intermediary picked up on the flaw and let the Iranians know. It goes without saying that something that obvious may well have been discovered by any competent Iranians too. Another bad move ... and I suspect that some bright-eyes at the CIA or national security was behind that juvenile "false flag" ruse. That person should be fired (if they haven't already been).

Cheers,
4.28.2009 6:52pm
zuch (mail) (www):
John Moore:
[zuch]: it will be a long haul, even if we do get through the CTBT that the Republicans torpedoed
You mean, another treaty that the good guys would adhere to (in fact, we do adhere to it), but the bad guys (hello, ever heard of little Kim?) will ignore? Great idea, that.
We don't need to test. Even if some don't agree to the CTBT, the technology and the monitoring stations will help to reduce proliferation, and will help detect some (or even most) significant nuclear tests by non-signatories. And we'll at least get a head count of the "good guys" and the "bad guys".

Preventing nuclear proliferation is in fact an important issue. Control of fissile material is one important prong, and the Republicans (and Duyba) have been lax on trying to control the already-existing SNM in the former Soviet Union. Why?!?!?

And our actions (invading Iraq, and letting North Korea off the hook) certainly tell any incipient dictators that it's best to have nukes. Once you have them, the U.S. is less likely to invade you. They might even sell you F-16s so your nukes don't get handed to radical Islamic forces (and other poorly-thought-out rationales for gummint policy). Good object lesson, eh?

That said, I'm done with this OT diversion on a torture thread.

Cheers,
4.28.2009 7:02pm
rosetta's stones:
Zuch,

First of all, you do appear to be making progress. Libya is a country in North Africa, and Iraq is a separate country in the Arabian Peninsula. You seem to understand that now.

Second, Libya's nuclear weapons program, lock, stock and centrifuge, along with the Chicom nuke warhead designs, is sitting down in Oak Ridge, Tennessee as we speak. That's in the Southeastern United States, in case you're wondering.

This event occurred because we took down Sadaam, occurring immediately AFTER we took down Sadaam. The events were clearly related, so Bush and Blair likely threatend our boy Khadaffi to accomplish this, because no chance he'da done it otherwise. Khadaffi wisely decided he'd rather avoid a Sadaam type inspection, took Bush/Blair's suggestion, and opted for a David Kay type inspection.

Blix and el Baradei weren't involved in any of this, of course. The "arms inspectors" you're touting found out about the extent of the Libyan nuke weapons program the same way I did... in the newspapers. They were completely ignorant of it, just as you were ignorant of it until I posted it for you above.

It's good to see you progressing, but you got a long way to go. The world is a dangerous place, and ignorant internet ranting won't ease that.
4.28.2009 7:38pm
John Moore (www):
Zuch spews:

I said your link said no such thing. Therefore, I think you're making sh*te up. Out with a cite for this, otherwise I'll ignore it as the unsupported opinion of someone who is not in a position to know.


Cool down or you'll dirty your pants. Why you are unable to read is beyond me.

From cite#1:

From late 2001 - Early 2002: Libya receives drawings and documents on design and fabrication of 1960s Chinese implosion device. Libya claimed its scientists could not assess its usefulness.


From cite#2

The Chinese designs were later resold to Libya by a Pakistani-led trading network


Are you JBG's sock puppet? The venemous style of vacuous argumentation would suggest so.
4.28.2009 8:07pm
John Moore (www):
Zuch writes:

We don't need to test. Even if some don't agree to the CTBT, the technology and the monitoring stations will help to reduce proliferation, and will help detect some (or even most) significant nuclear tests by non-signatories. And we'll at least get a head count of the "good guys" and the "bad guys".


Uh, sure. As an engineer, I call bull on that. Yes, we hope we don't need to test, but as time goes on, our assurance that our systems will work goes down.

The CTBT, while useful for propaganda purposes in shaming regimes that don't care, also keeps us from making sure our deterrent is up to date, much less testing new technologies (you may notice that technology has changed a little bet since our last test) that will make for better, cleaner, more reliable weapons, and will help with missile defense if the politicians ever allow us to use what the Russians have: ERW's on their ground based ABM interceptors.

And our actions (invading Iraq, and letting North Korea off the hook) certainly tell any incipient dictators that it's best to have nukes.


Yah really think the needed that invasion to give them the hint?

As for North Korea, while I thought GWB should have done more, it was much more difficult to stop than Iraq - because it holds South Korea and Japan as hostages.

Ever been to Seoul? You can see North Korea from there. And there are thousands of artillery pieces right at the border, ready to rain down chemical warheads on the millions of civilians there. I suspect that's the reason that we didn't attack and stop them.

So yes, the message is: get nukes, but in the meantime use CBW to hold hostage enough people to prevent a military interdiction of your effort.

Note that Iran does not yet have that capability. Hint Hint
4.28.2009 8:12pm
zuch (mail) (www):
John Moore:

My error was searching "China" and not "Chinese". My apologies, and I stand corrected and enlightened.

Nonetheless, attacking Iraq (when Iraq was allowing inspectors) when Libya was engaged in proliferation is about as stoopid as attacking Iraq when al Qaeda was in Pakistan ... not to mention hardly likely to encourage co-operation from other to weapons inspections.

And I fully agree (and was aware) that Pakistan has been a "bad boy". I've maintained this for quite some time. So why are we giving them F-16s? And why have we been funneling funds for a couple decades to the ISI, who promptly hand them over to the Taliban?!?!?

Cheers,
4.28.2009 9:15pm
zuch (mail) (www):
John Moore:
As an engineer, I call bull on that. Yes, we hope we don't need to test, but as time goes on, our assurance that our systems will work goes down.
"Argument from authority"? You a nucular physicist? You really know nothing about the reliability of the "packages". They are quite reliable, and the physics is well-known. We know far more about the physics now than we did in 1945 ... but we didn't even bother to test the "Little Boy" design before we used it; imagine that.
...much less testing new technologies (you may notice that technology has changed a little bet since our last test) that will make for better, cleaner, more reliable weapons...
Sorry, but the best thing anyone can do with a nuke is not to use it (and if you disagree with that, perhaps you can explain why we should insist that others not have them). Any nuke that explodes in anger is a "failure".

Cheers,
4.28.2009 9:22pm
zuch (mail) (www):
Realism sets in:
[John Moore]: As for North Korea, while I thought GWB should have done more, it was much more difficult to stop than Iraq - because it holds South Korea and Japan as hostages.
Imagine that. Think anyone will notice?
Ever been to Seoul? You can see North Korea from there.
Many a time. Did you have a point? Or is this more attempted "argument from authority"?

Cheers,
4.28.2009 9:27pm
John Moore (www):

"Argument from authority"? You a nucular physicist? You really know nothing about the reliability of the "packages". They are quite reliable, and the physics is well-known. We know far more about the physics now than we did in 1945 ... but we didn't even bother to test the "Little Boy" design before we used it; imagine that.

Physics tells us the theory of how things work. Engineers deal with the reality of how things we build actually behave.

The issue is not the nuclear physics, because that doesn't change. The issue is things like changes in tempco of plastic explosives, or growth of solder fingers on circuit boards, or other things that are unexpected and will not show up in a simulation. Many of these things can be tested for, but one principle of quality assurance is to test the entire system.


Sorry, but the best thing anyone can do with a nuke is not to use it (and if you disagree with that, perhaps you can explain why we should insist that others not have them).


Don't be so simplistic.

A nuke which takes out an incoming missile is probably a very good thing. A nuke dropped on a city is really bad, and we hope we never have to do it.

As to why we should insist, st that others not have them, it's really simple. Because too many people already have them, and its against OUR interest for them to have them. Is that a difficult concept to understand?
4.28.2009 10:23pm
John Moore (www):

My error was searching "China" and not "Chinese". My apologies, and I stand corrected and enlightened.

Some of us pay attention to the world, not just dig out debating points on Google. Hence those who pay attention have known those facts for several years. Glad to have helped with your belated education.
4.28.2009 10:24pm

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