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It's Official: Kinder, Gentler Military Commissions:

Across a range of issues, the Obama Administration is discovering that setting national security policy and balancing the relevant trade-offs is more difficult than it appeared when President Bush was in charge and then-Senator Obama and his advisors could take policy positions without any responsibility for implementing them. The latest is the announcement that the Administration will revive military commissions, albeit with some additional protections for defendants.

Administration officials said they were making changes in the system to grant detainees expanded legal rights, but critics said the move was a sharp departure from the direction President Obama had suggested during the campaign, when he characterized the commissions as an unnecessary compromise of American values.

In a statement, Mr. Obama noted that the country had a long tradition of using military commissions, and said the changes would make the tribunals, to be used along with federal courts, a fairer avenue for prosecution. "This is the best way to protect our country, while upholding our deeply held values," Mr. Obama said.

The commissions are run by the Pentagon under a 2006 law passed specifically for terrorism suspects, in part to make it easier to win convictions than in federal courts. The Obama administration suspended the military commission system in its first week in office.

Insert snark here.

Meanwhile, what does it say that the Administration has resurrected or maintained the core elements of so many Bush Administration national security policies while OLC nominee Dawn Johnsen sits in limbo? And would the Administration's policies be any different were she already confirmed?

Related Posts (on one page):

  1. It's Official: Kinder, Gentler Military Commissions:
  2. Gitmo Military Commissions Part Deux: The Sequel:
J. Aldridge:
If Washington was still president these detainees would already have been disposed of long ago.
5.16.2009 10:43am
Justin (mail):
JHA,

You do realize that the President is not a Monarch, right? You were paying attention Obama admin floated the idea of using the courts and was subject to a scathing and concentrated PR campaign against that idea, which he apparently lost, right?

You can blame Obama for having no backbone, but that doesn't seem to be your position. This is no more a moral justification of Bush's policies than the 2002 election was a moral justification of the Iraqi war.
5.16.2009 10:54am
rosetta's stones:

"...what does it say that the Administration has resurrected or maintained the core elements of so many Bush Administration national security policies while OLC nominee Dawn Johnsen sits in limbo?"


It says "Meet the new boss, same as... etc."

Or maybe "Yes, we can (break 30M hardcore lefty hearts)."

I'm also soon expecting "I just got off the phone with Bush 43, and he agrees that..."
5.16.2009 10:56am
Anderson (mail):
I'm disappointed, but if fundamental rights are protected, I'm not sure whether the venue makes much difference.
5.16.2009 11:14am
Soronel Haetir (mail):
I'm still interested in seeing what the courts do after these commission trials even with the changes. Given the weight that the habeas courts have been giving hearsay I'm not sure they would accept even limited entry of such evidence (unless by limited the admin means adhering to traditional exceptions) in punative cases.

Or does Boumedienn not prvide potential releif to anyone actually put on trial?
5.16.2009 11:25am
Oren:
At least the way I read Boumedinne, the point was that the military process had to be a valid substitute for Habeas in order not to run afoul of the suspension clause. The relevant finding:
3. Because the DTA’s procedures for reviewing detainees’ status are not an adequate and effective substitute for the habeas writ, MCA §7 operates as an unconstitutional suspension of the writ.


If Obama is serious about providing the detainees an adequate and effective protection, then I'm willing to let the military commissions go ahead outside the Federal Courts.
5.16.2009 11:27am
Soronel Haetir (mail):
Oren,

I guess the questions I'm askin, giving the weight that the current habeas courts are giving hearsay and statements from other detainees (very little if any as far as I can tell), even with these changes are Art 3 judges going to see these commissions as an acceptable substitute?
5.16.2009 11:34am
anon1111:
I like how you ask, "what does it say that the Administration has resurrected or maintained the core elements of so many Bush Administration national security policies?" without even posting, or for all we know looking at, the changes. How do you determine that the "core elements" have been maintained? Care to spell this out? When, according to a top Air Force litigator (you can decide what you think about his credibility), Lt. Couch, 80-90% of the cases at Guantanamo are based solely on confessions, and many of the confessions are the result of coercive interrogations, and evidence from coercive interrogations is now banned under the new commissions, how exactly is it that you figure that you haven't just been duped? How do you take from this that Obama has "maintained" the core of military commissions, rather than that he just duped you by retaining the name for political purposes while giving the prisoners about the same rights they'd have in federal court?

I have to admit, sometimes you do engage in thoughtful, considered, serious analysis. This wasn't one of those times.
5.16.2009 11:48am
BGates:
I'm disappointed, but if fundamental rights are protected a Democrat is doing it, I'm not sure whether the venue makes much difference.

You do realize that the President is not a Monarch, right?
You do realize that "Monarch" means government by The One, right?
5.16.2009 11:50am
MarkField (mail):
Glenn Greenwald's criticisms of the decision, and of the hypocrisy of Obama supporters, can be found here.
5.16.2009 11:52am
Just an Observer:
I don't think the military commissions will end up being the most controversial aspect of detainee handling in the future. I tend to agree that the commissions -- for a limited purpose -- can be salvaged by process reforms such as those proposed by Obama (and I know that people I respect disagree).

However, I think there still will be some set of detainees the government and most Americans would consider dangerous who cannot be convicted of crimes in either the commissions or or Article III courts.

This set of persons may even be enlarged by the process reforms. Note that the charges against one detainee -- the so-called 20th hijacker -- have been dropped because the convening authority for the military commissions found his treatment met the high legal standard of torture. The new rules, which also are supposed to bar evidence collected by lesser forms of illegal coercion, may lead to a larger number of such cases where the Bush administration's lawbreaking tainted the situation irreparably.

So what continues to loom is the question of indefinite preventive detention for that class of detainees who cannot be convicted.

Additionally, there is no resolution of the question of what to do with detainees who have been and will be ordered by courts to be released. Many (most?) of them remain in custody.
5.16.2009 12:00pm
Gabriel McCall (mail):
Just remember, whatever we do to them, they can claim justification for doing to us. Do we want captured Americans to be tried by hostile military commissions?

Taliban Waterboards Captured U.S. Soldiers--Claims "Not Torture"
5.16.2009 12:05pm
ruuffles (mail) (www):
Somewhere in Washington DC, Tony Kennedy is smiling at the thought of a few more landmark decisions to his name.
5.16.2009 12:06pm
ruuffles (mail) (www):
Has he said where these would be held? If not Gitmo, then it seems the only option would be military bases on US soil. Would this still run the ire of the NIMBY crowd?
5.16.2009 12:09pm
Oren:


I guess the questions I'm askin, giving the weight that the current habeas courts are giving hearsay and statements from other detainees (very little if any as far as I can tell), even with these changes are Art 3 judges going to see these commissions as an acceptable substitute?

That will depend quite a bit on how the "gentler" commissions are actually run. Obama is a bit short on details at the moment, so I think it's prudent to withhold judgment until all the details are known. I would like to see Congress codify the new commissions in MCAv2, just to lend a bit more Constitutional heft to the process, but that probably won't happen.



However, I think there still will be some set of detainees the government and most Americans would consider dangerous who cannot be convicted of crimes in either the commissions or or Article III courts.

How would we possibly know they are dangerous but not have even the minimal amount of proof necessary to detain them indefinitely as enemy combatants?
5.16.2009 12:12pm
trad and anon (mail):
Glenn Greenwald's criticisms of the decision, and of the hypocrisy of Obama supporters, can be found here.

You won't be finding any hypocrisy from this Obama supporter. I'm not remotely happy with this decision and it's pushing me closer to "former Obama supporter." My other progressive friends feel the same way.
5.16.2009 12:13pm
ruuffles (mail) (www):

However, I think there still will be some set of detainees the government and most Americans would consider dangerous who cannot be convicted of crimes in either the commissions or or Article III courts.

You could say the same about OJ pre-2008.
5.16.2009 12:17pm
ruuffles (mail) (www):
This is from the la times

Obama has so far omitted any mention of where the resumed tribunals might take place. He has ordered the Guantanamo detention facility closed by Jan. 22, 2010, and the detainees who can be put on trial moved to U.S. locations. Those for whom there is no case must be released to their home countries or other states willing to receive them.

latimes
5.16.2009 12:22pm
Oren:


You could say the same about OJ pre-2008.


That was a CA state court, notoriously worse than Art III courts.
5.16.2009 12:30pm
Volokh Groupie:
@Gabriel

You truly think that Taliban would bring our soldiers for a Military Commissions Trial? And the snark from Tamanaha, while great for the already converted, simplifies the fact that there is a difference between the treatment of members of Al Qaeda and the Taliban with respect to POW status. You can argue waterboarding is torture without resorting to childish Jon Stewart tactics that so many here decry when say a DB uses them.


Otherwise, lets wait to see what these military commissions will be like. While I'm sure Katyal will be in their ear about them the current administration hasn't shown much departure from the previous one in terms of how they wage the WOT.
5.16.2009 12:41pm
Just an Observer:
Oren: How would we possibly know they are dangerous but not have even the minimal amount of proof necessary to detain them indefinitely as enemy combatants?

Well, that depends. I cannot help but notice that two-thirds of the "enemy combatants" detained in Guantanamo for some period of years were released by the Bush administration without fanfare. A minor percentage of those have supposedly "returned to the battlefield," which certain polemicists somehow imply is Obama's fault.

I do happen to believe that we are at war, and if an enemy soldier -- even one without uniform -- is unambiguously seized "carrying arms on the battlefield," then we have a right to detain him.

The bigger problem lies with cases where the detainees were seized nowhere near a battlefield or even a theater of war, and are alleged to be enemies. What level of evidence and process is required? The U.S. District judges in D.C. are working their way through that now.

p.s. Remember, we're now supposed to say "detainees formerly known as 'enemy combatants,'" or something.
5.16.2009 12:41pm
Soronel Haetir (mail):
trad and anon,

But the question is, given that you are a self professed progressive, what are the chances that you would support someone else next election cycle, provided Obama wins the primary which seems pretty much a given.

When was the last time a sitting president was beaten in their own party's primary? I know Kennedy came close in 1980 and am not counting LBJ since he didn't want the job.
5.16.2009 12:43pm
ruuffles (mail) (www):

You truly think that Taliban would bring our soldiers for a Military Commissions Trial?

A similar show trial ("crimes against Muslims blah blah") with similar "protections" (and of course the death penalty) doesn't seem unlikely.
5.16.2009 12:46pm
Oren:


I do happen to believe that we are at war, and if an enemy soldier -- even one without uniform -- is unambiguously seized "carrying arms on the battlefield," then we have a right to detain him.

Agreed, for suitable definition of "battlefield".
5.16.2009 12:58pm
Just an Observer:
Meanwhile, what does it say that the Administration has resurrected or maintained the core elements of so many Bush Administration national security policies while OLC nominee Dawn Johnsen sits in limbo? And would the Administration's policies be any different were she already confirmed?

There does seem to be an unspoken threat to filibuster Johnsen as one more tactic by Republicans to try to make the torture scandal go away.

But people are supposed to believe that all Republican senators are angry over a footnote in an old abortion brief, which has zilch to do with Johnsen's agenda to reform OLC.

In the Senate, the nastiest sort of politics is kept sub rosa.
5.16.2009 1:11pm
geokstr (mail):

Gabriel McCall:
Just remember, whatever we do to them, they can claim justification for doing to us. Do we want captured Americans to be tried by hostile military commissions?

Taliban Waterboards Captured U.S. Soldiers--Claims "Not Torture"

???What have you been smoking??? (I want some too.)

Are you saying that slowly sawing heads or genitals off with a rusty machete, after you've had them videotaped apologizing for their offenses against Allah is somehow so mild that waterboarding (with doctors present to make sure no one really gets hurt) would be even more evil than that?

And they do this and lots, lots more as a matter of official policy without any agonizing internal legal battles, and for everybody they capture, including civilians and little Christian girls on their way to school. So let them imitate us, and waterboard all our generals that they capture. Keep US prisoners confined without charges for years, and make sure that they are well fed, their religious needs are taken care of, that they have visits from the Red Crescent Society, and give them lawyers, lots of lawyers. Hey, put a caterpillar in the cell with them for all I care. It would actually be infinitely more humane of the jihadists to just waterboard their prisoners than what they do now.

This phony moral equivalence baloney has gotten so far out of hand it would be hilarious if it wasn't so tragic and downright nasty.

One man pushes an old lady into the path of a bus to be killed, another risks his life to push an old lady out of the path of a bus. I'll bet the left could argue with a straight face that these men are both equally evil because they both push old ladies around.

The jihadis must be laughing their asses off at this circus.
5.16.2009 1:32pm
PC:
Are you saying that slowly sawing heads or genitals off with a rusty machete, after you've had them videotaped apologizing for their offenses against Allah is somehow so mild that waterboarding (with doctors present to make sure no one really gets hurt) would be even more evil than that?
...
This phony moral equivalence baloney has gotten so far out of hand it would be hilarious if it wasn't so tragic and downright nasty.

Juxtaposed without further comment.
5.16.2009 1:46pm
Dave N (mail):
Just remember, whatever we do to them, they can claim justification for doing to us. Do we want captured Americans to be tried by hostile military commissions?
There are some on the left who would be quite happy if the former President and Vice President were tried by a biased, extremely political Spanish prosecutor, see for example, comments on this very site.
5.16.2009 1:49pm
ruuffles (mail) (www):

waterboarding (with doctors present to make sure no one really gets hurt)

Those of us on the left are still waiting for Hannity to man up and get waterboarded for charity. Its like he's not even willing to pull the old "yeah legal liabilities for Foxnews blah blah" excuse.
5.16.2009 1:50pm
ruuffles (mail) (www):

There are some on the left who would be quite happy if the former President and Vice President were tried by a biased, extremely political Spanish prosecutor

But if they traveled to Spain of their own accord (because, why not, I hear its lovely this time of year), and were arrested by Spanish authorities, what are they going to say? Your courts are rigged! Waah. I want to be tried in an Article III court. Waah.
5.16.2009 1:54pm
Bruce Hayden (mail):
Just remember, whatever we do to them, they can claim justification for doing to us. Do we want captured Americans to be tried by hostile military commissions?
Sorry, false dilemma. The issue is what to do with illegal combatants (under the Geneva Convention). The traditional solution has been execution. Heck, the standard policy in Iraq was beheading and the like, and our soldiers were in uniform, etc.

Yes, there is a question here about what to do with those still in custody who are not deemed dangerous or strategic. And that has to do with how can we get rid of them, without bringing them into anyone's Congressional district. If there were somewhere we could return them to, they would be long gone. And for those considered somewhat dangerous, but no longer that strategic, the issue is keeping them out of our neighborhoods and off the battlefield (in such a way that the international community is not horrified about where we sent them).

What is totally lost here is that there are likely no plans to try many, if not most, of the remaining detainees at Gitmo. They are still there because we haven't figured out what to do with them. There is little, if any, evidence available to us that the U.S. is seriously contemplating trying even one of those detainees who is still there under questionable circumstances (and if we don't have the evidence before us, it is likely that it is because it is classified).
5.16.2009 1:58pm
PC:
The issue is what to do with illegal combatants (under the Geneva Convention). The traditional solution has been execution.

Maher Arar and Khalid el-Masri should breathe a big sigh of relief that they were merely tortured (allegedly) instead of being murdered. Hooray for us, we're better than al Qaeda.
5.16.2009 2:16pm
jukeboxgrad (mail):
pc:

Maher Arar and Khalid el-Masri should breathe a big sigh of relief that they were merely tortured (allegedly) instead of being murdered.


That sigh of relief applies to them, but not to the various people that we did indeed torture to death.
5.16.2009 2:18pm
geokstr (mail):

PC:

Are you saying that slowly sawing heads or genitals off with a rusty machete, after you've had them videotaped apologizing for their offenses against Allah is somehow so mild that waterboarding (with doctors present to make sure no one really gets hurt) would be even more evil than that?
...
This phony moral equivalence baloney has gotten so far out of hand it would be hilarious if it wasn't so tragic and downright nasty.


Juxtaposed without further comment.

No, don't be shy, let's hear your "further comment".

However, see if you can do it within the context that someone on your side claimed that those gentle jihadis might actually get so downright evil like us that they might waterboard their prisoners instead of the wonderfully humane treatment they now provide.

But context or perspective to a liberal is worse than Kryptonite to Superman. That's why it's so easy to make anything they want out of the Constitution. Heck, it's got the word "welfare" in it, therefore the people who wrote it must have wanted us to be socialists all along, so they're justified in making it so.

This is called "quite-mining", a particularly despicable debate tactic pioneered to a fine art by one of your foes - creationists. But whatever works, right? Saul told you so.
5.16.2009 2:18pm
jukeboxgrad (mail):
adler, presumably you would like to know that you're promoting a video that contains serious errors. For example, at 2:27 it states that GWB "increased the debt" by $2,989 billion. That's wrong. Under GWB, the national debt grew from $5.7 trillion to $10.6 trillion. $4.9 trillion is significantly different from $3.0 trillion.

The video also claims (same spot) that Obama "Increased the Debt" by $9,979 billion. Do you have any idea where that number came from? I don't. WSJ said this:

Obama's budget … adds $6.5 trillion to the national debt


That claim itself is suspect, but not nearly as suspect as the claim you're promoting. Making Obama look bad after Bush is easy if one is willing to use numbers that bear only a vague resemblance to reality. Presumably you intend to post an update and alert your readers.

[The sources and methodology for the numbers are provided here:
http://politicalmath.wordpress.com/2009/05/15/the-national-debt-road-trip/]

5.16.2009 2:26pm
MarkField (mail):

You won't be finding any hypocrisy from this Obama supporter. I'm not remotely happy with this decision and it's pushing me closer to "former Obama supporter." My other progressive friends feel the same way.


I'm happy to say that the commenters here have been pretty consistent, but it's pretty clear that there are places where that isn't true.
5.16.2009 2:29pm
jukeboxgrad (mail):
geo:

see if you can do it within the context that someone on your side claimed that those gentle jihadis might actually get so downright evil like us that they might waterboard their prisoners


If a future enemy waterboarded an American 183 times, or shackled him in a standing position for 180 hours, would you refrain from accusing that enemy of torture?
5.16.2009 2:30pm
Dave N (mail):
But if they traveled to Spain of their own accord (because, why not, I hear its lovely this time of year), and were arrested by Spanish authorities, what are they going to say? Your courts are rigged! Waah. I want to be tried in an Article III court. Waah.
They might just say, "I have a diplomatic passport," which Bush, as a former President, gets as a lifetime perk, and Cheney may have as well.

So if a U.S. diplomatic passport has no value, then our State Department has every right to be very upset.

Or perhaps you think Bush and Cheney should use diplomatic passports at their peril because you, personally, do not like them.
5.16.2009 2:33pm
Harry Eagar (mail):
I still don't get how any military commission gets around Kahanamoku.

All the more reason to denounce the Geneva convention, admit the fact that they are prisoners of war, and explain that POWSs don't get lawyers or criminal charges.
5.16.2009 2:40pm
Benjamin Davis (mail):
A passport does not give you diplomatic immunity as a formed head of state. If a passport could permit that, do you really think Pinochet would not have traveled on that when he went to England and got stopped.
Best,
Ben
5.16.2009 2:41pm
Benjamin Davis (mail):
No third class processes for foreigners - courts or courts-martial. These will be challenged too. The 2006 law just keeps giving full employment to challenges.
Best,
Ben
5.16.2009 2:42pm
Alec:
Markfield:

I agree with Greenwald, but it is worth pointing out that even he isn't suggesting the "conservative" response is remotely acceptable, or better:


I'm obviously of the view that Obama deserves much criticism and, particularly on the civil liberties front, has inexcusably embraced many of the worst and most defining Bush abuses. Those are just facts. But -- as I detail here -- that is not to say that there are "no differences" between him and Bush/Cheney or with what McCain/Palin would have done. Everyone can decide for themselves if those differences are good or significant, but they clearly exist. Those, too, are just facts.


While I disagree with the decision to embrace the "commissions," I'm inclined to agree with anon1111. The pro-Bush critique isn't very thoughtful, since we don't know what the result will be once the confessions are tossed out.
5.16.2009 2:46pm
Dave N (mail):
Jukebox,

How about the Congressional Budget Office? I kmow, it doesn't fit your partisan meme--but according to that radical right-wing publication, the Washington Post:
In the first independent analysis, the nonpartisan Congressional Budget Office concluded that President Obama's budget would rack up massive deficits even after the economy recovers, forcing the nation to borrow nearly $9.3 trillion over the next decade.
Seems like a pretty good source for JHA to me.
5.16.2009 2:54pm
Dave N (mail):
Benjamin Davis,

I didn't say that an ordinary passport would save someone from arrest. What I DID say is that former President Bush carries a diplomatic passport as a lifetime perk and I suspect (but do not know) that former Vice President Cheney does as well.
5.16.2009 2:57pm
trad and anon (mail):
But the question is, given that you are a self professed progressive, what are the chances that you would support someone else next election cycle, provided Obama wins the primary which seems pretty much a given.

Of course I'll vote for Obama over a Republican. A Republican is almost certain to be worse than Obama on virtually every issue I care about, including this one. The GOP spent the last eight years defending detention policies even worse than the military commissions Obama is reinstating in a "kinder, gentler" form. That doesn't mean I can't be angry with Obama about this.
5.16.2009 2:57pm
boose:
kindler? I certainly don't know what that means. did you mean to say kinder? (see your headline).

[Oops. Fixed. JHA]
5.16.2009 3:03pm
Alec:
trad and anon: Don't you love the conservative objections? As though they had any credibility on this issue. Senator McCain called Boumediene v. Bush one of the Supreme Court's worst decisions. I can't believe these people think we'd ever cross the aisle to vote for their candidates, even after a royal screw up like this.
5.16.2009 3:12pm
Oren:


If a future enemy waterboarded an American 183 times,

The 183 times thing had been debunking. He was waterboarded 5 times with a total of 183 pours.
5.16.2009 3:12pm
rosetta's stones:
5 frickin waterboardings, that's all we could manage with this frickin guy?!

What... is there some union work rules in play here? Can't waterboard on the offshift or somethin'?!

5 waterboardings... my grandmother could waterboard faster'n that, and she was old.
5.16.2009 3:19pm
MLS:

If a future enemy waterboarded an American 183 times, or shackled him in a standing position for 180 hours, would you refrain from accusing that enemy of torture?


Isn't it appropriate to ask if that "enemy" would loudly proclaim "We are torturers and are going to publicly release proof and investigate ourselves!"
5.16.2009 3:28pm
PC:
No, don't be shy, let's hear your "further comment".

No need, your own words do well enough.

However, see if you can do it within the context that someone on your side claimed that those gentle jihadis might actually get so downright evil like us that they might waterboard their prisoners instead of the wonderfully humane treatment they now provide.

Which side would that be? The US doesn't torture side? The rule of law side?

But context or perspective to a liberal is worse than Kryptonite to Superman. That's why it's so easy to make anything they want out of the Constitution. Heck, it's got the word "welfare" in it, therefore the people who wrote it must have wanted us to be socialists all along, so they're justified in making it so.

I have a number of friends that are liberals, so I'll make sure to ask them if context or perspective, to them, is worse than Kryptonite to Superman. While that's an interesting perspective, it is not particularly informative.

This is called "quite-mining", a particularly despicable debate tactic pioneered to a fine art by one of your foes - creationists. But whatever works, right? Saul told you so.

I'm not really sure what "quite-mining" is. Admittedly I haven't studied the Bible in years, so I'm not sure what St. Paul has to do with "quite-mining" in his pre-Damascus days.

Oren,

The 183 times thing had been debunking. He was waterboarded 5 times with a total of 183 pours.

Your honor, I did not shoot that person 183 times. I shot him once with 183 bullets.
5.16.2009 3:46pm
trad and anon (mail):
The 183 times thing had been debunking. He was waterboarded 5 times with a total of 183 pours.

Not true. Waterboarding is a procedure in which somebody is drowned, but you stop before they die. As it happens, it only takes a few seconds of pouring to produce all the physiological effects of drowning. Typically it takes well less than thirty seconds for the victim to start begging for it to end, if they succeed in speaking, which is hard when you're going through the process of choking to death. Because it takes so little time, you can stop before the victim actually suffers permanent damage from asphyxiation, which is the whole point: you can inflict terrible pain without leaving any evidence that it ever happened.

The "five times" you're referring to refers to five prolonged sessions of an hour or more each. Over those five sessions, the drowning technique was applied 183 times. As waterboarding is the application of the drowning technique, he was waterboarded 183 times, not five.
5.16.2009 3:48pm
Anderson (mail):
Let's consider:

(1) Torture is a serious crime and a violation of international law.

(2) Bush, Cheney, and others in the previous administration may plausibly be suspected of having authorized and ordered torture. I realize many disagree, and those many may be right; but I think it's just silly, and not worth discussing, to assert that there's not enough evidence to merit an investigation, at this point in the game.

Given those premises, and the obvious disinclination by Obama to investigate (which, for all I know, may make him an accessory after the fact?), why would it seem absurd to wish for the suspected torturers to be investigated, and if sufficient evidence is found, prosecuted, by a Western European court with guarantees of due process and fundamental rights?

I don't think it will happen, but it's not a ridiculous thing to wish for, at least if one embraces the rule of law and a morality sufficiently developed to reject torture as unacceptable.
5.16.2009 4:00pm
Dave N (mail):
Given those premises, and the obvious disinclination by Obama to investigate (which, for all I know, may make him an accessory after the fact?
Anderson, you are usually much, much smarter than that.

You know as well as I do that the failure to investigate (by police, DA's, whatever) does not constitute being an accessory after the fact even the police or DA decides not to investigate.
5.16.2009 4:04pm
PC:
I don't think it will happen, but it's not a ridiculous thing to wish for, at least if one embraces the rule of law and a morality sufficiently developed to reject torture as unacceptable.

As we are learning morality is an ever shifting thing. Anything up to the point of acting the same as al Qaeda is now morally acceptable.
5.16.2009 4:05pm
John Moore (mail) (www):

Not true. Waterboarding is a procedure in which somebody is drowned, but you stop before they die. As it happens, it only takes a few seconds of pouring to produce all the physiological effects of drowning.

Nonsense. It amazes me that this obviously false idea floats through this debate as unassailable truth.

Drowning involves inhaling water instead of air, which does not happen in water-boarding. Obviously, the physiological effects of filling your lungs with water is different from waterboarding.

Those asserting the "drowning physiology" idea are either careless, clueless about physiology, or don't know what the word means.

Waterboarding produces the psychological effects of near-drowing. In other words, it produces the extreme anxiety which causes someone near drowning to try to save themselves at any cost.

Physiologically, it is more like holding your breath for an uncomfortable period of time.
5.16.2009 4:16pm
trad and anon (mail):
As we are learning morality is an ever shifting thing. Anything up to the point of acting the same as al Qaeda is now morally acceptable.

I used to hear conservatives complain about liberals' supposed "moral relativism." Now it's all about the other guy being worse.

Some things are just wrong even if the other guy is worse.
5.16.2009 4:17pm
trad and anon (mail):
Nonsense. It amazes me that this obviously false idea floats through this debate as unassailable truth.

Drowning involves inhaling water instead of air, which does not happen in water-boarding. Obviously, the physiological effects of filling your lungs with water is different from waterboarding.

Those asserting the "drowning physiology" idea are either careless, clueless about physiology, or don't know what the word means.

Waterboarding produces the psychological effects of near-drowing. In other words, it produces the extreme anxiety which causes someone near drowning to try to save themselves at any cost.

Physiologically, it is more like holding your breath for an uncomfortable period of time.

This is not remotely accurate. Waterboarding almost immediately produces gagging, choking, gasping for breath, and random flailing, which are exactly the physiological correlates of drowning. It also produces the same sorts of physical stress responses as drowning. If you continue the procedure the person will die due to lack of oxygen.

The person believes themselves to be drowning because they're experiencing all the physical reflexes associated with drowning. The fact that water is not inhaled (which may or may not be true depending on exactly how the procedure is performed) is almost beside the point.
5.16.2009 4:27pm
Thackery:
This commentary from the Weekly Standard should help us all see things more clearly:

Snippet:

Well, it didn't happen like that. Cheney had boxed Obama in, and the aggressive response from Democrats inside the administration and out has only made the box tighter. Even now, Cheney's unapologetic and strident defense of the Bush administration's interrogation tactics is driving the left to ever more preposterous arguments not against torture, but in defense of the very terrorists subjected to those tactics. Andrew Sullivan writes today that the "Bush-Cheney administration pesided over the worst attack on US soil in history and failed to capture or bring to justice any of its perpetrators." Is it possible that Sullivan has become so deluded as to believe that Khalid Sheik Mohammed, whose rough treatment Sullivan has obsessed on for months now, is a victim and not a perpetrator, indeed the mastermind, of that horrible attack?

Some liberals are starting to catch on. Mike Madden describes today how Cheney set the torture trap and snared not just Obama but also the once untouchable Speaker of the House. Madden perhaps gives Cheney too much credit, but at least he's dispensed with the notion that Cheney is somehow dragging the Republican party down. It's Democrats who are getting tripped up as they try and fend off his attacks.

Pelosi has beaten a hasty retreat from her 24 hour war with the CIA. She now wants to "move forward," which echoes President Obama's own language whenever the left tries to push him towards some kind of investigation or truth commission. The White House refused to release photos that the left believes would have further demonstrated the abuses of the Bush administration. It's hard to imagine that the intense backlash to the release of the memos didn't play some part in that decision. And now the White House is moving to revive military commissions and indefinite detention. It's an acknowledgment that the Bush-Cheney way of war is not only legitimate, it's inescapable.

Things might have played out very differently if Cheney had kept quiet, but the Democrats were all screaming 'bring it on.' It turns out Cheney is an asymetric threat they were unprepared for and for which they still have no counter. Despite his low public approval numbers, he's jammed up a popular president and a powerful speaker with little help from the party or the press. He is, as the boss writes in this week's editorial, the most potent weapon Republicans have right now.
5.16.2009 4:27pm
PC:
John Moore, thank you for the clarification. Waterboarding is suffocation that induces the psychological effects of drowning. In turn it can induce physiological effects, such as spasms in the laryngeal muscles, requiring a physician to perform an emergency tracheotomy so the victim can breathe.
5.16.2009 4:29pm
jukeboxgrad (mail):
dave n:

forcing the nation to borrow nearly $9.3 trillion over the next decade


First of all, how did "$9.3 trillion" turn into $9,979 billion? The latter is the number appearing in the video.

And did you notice how WP defined "the next decade?" That phrase is a reference to the period 2009-2019. That's not a "decade," unless you do some rounding. It's a period of 11 years. Obama's term will last 11 years? Who knew?

The graphic here, which is being heavily promoted (by people like bernstein), promotes the bizarre idea that Obama will have an 11-year term. Specifically, it implies that Obama is responsible for the period 2009-2019. Hmm, let's see. If Obama wins in 2012, he will leave office on 1/20/17. If he is nevertheless responsible for 2017, 2018 and 2019, then Bush should be considered responsible for 2009, 2010 and 2011. But the numbers being quoted at places like WSJ and WS do indeed treat 2017, 2018 and 2019 as Obama's responsibility. Along with 2009, 2010 and 2011. An 11-year term!

Feel free to explain how that makes sense.

Seems like a pretty good source for JHA to me.


It's "a pretty good source" for anyone who thinks that Obama will have an 11-year term.

I didn't say that an ordinary passport would save someone from arrest.


What you seemed to be saying was that a diplomatic passport "would save someone from arrest." I hope you'll either withdraw that claim or show some evidence to support it.

the failure to investigate (by police, DA's, whatever) does not constitute being an accessory after the fact


Except that CAT specifically requires us to investigate and prosecute "wherever there is reasonable ground to believe that an act of torture has been committed." And that "reasonable ground" has already been established. Cheney has essentially delivered a public confession.

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

The 183 times thing had been debunking. He was waterboarded 5 times with a total of 183 pours.


The alleged debunking has been debunked. According to the CIA, KSM was waterboarded 183 times.

pc and trad also explained the issue perfectly.

====================
mls:

Isn't it appropriate to ask if that "enemy" would loudly proclaim "We are torturers and are going to publicly release proof and investigate ourselves!"


That is indeed what they would say if they intend to be taken seriously as a defender of human rights, and as a promoter of the rule of law. Which are things we used to intend.

I notice you haven't answered the question.

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

Drowning involves inhaling water instead of air, which does not happen in water-boarding.


That false claim has already been addressed (link, link). But I know that won't stop you from posting it over and over again. You're continuing your remarkable track record of making false claims.
5.16.2009 4:36pm
jukeboxgrad (mail):
thackery:

It's an acknowledgment that the Bush-Cheney way of war is not only legitimate, it's inescapable.


I hope you will address what Wilkerson said about "the Bush-Cheney way of war:"

no torture or harsh interrogation techniques were employed by any U.S. interrogator for the entire second term of Cheney-Bush, 2005-2009. So, if we are to believe the protestations of Dick Cheney, that Obama's having shut down the "Cheney interrogation methods" will endanger the nation, what are we to say to Dick Cheney for having endangered the nation for the last four years of his vice presidency?
5.16.2009 4:43pm
Jonathan H. Adler (mail) (www):
JBG -

The sources and assumptions used in the video are detailed here.

JHA
5.16.2009 4:45pm
PC:
Thackery, if you dislike the GOP I would strongly suggest listening to Michael Goldfarb.
5.16.2009 4:47pm
Alec:

Physiologically, it is more like holding your breath for an uncomfortable period of time.


Not even close.


Water-boarding or mock drowning, where a prisoner is bound to an inclined board and water is poured over their face, inducing a terrifying fear of drowning clearly can result in
immediate and long-term health consequences. As the prisoner gags and chokes, the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia, rapid heart beat and gasping for
breath.
There is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs from inhalation of water. Long term effects include panic attacks, depression and PTSD. I remind you of the patient I described earlier who would panic and gasp for breath
whenever it rained even years after his abuse.


http://intelligence.senate.gov/070925/akeller.pdf#page=6

Statement by Allen S. Keller, M.D. Associate Professor of Medicine, New York University School of Medicine Director, Bellevue/NYU Program for Survivors of Torture Member, Advisory Council, Physicians for Human Rights

Comparing it to "holding your breath for an uncomfortable period of time" is like suggesting that the sexual humiliation techniques were equivalent to youthful experimentation or consensual rough sex. What a remarkable statement.
5.16.2009 4:49pm
Franklin Drackman:
I underwent torture in 1962, in a Government facility, make that a HOSPITAL, all supervised by a Physician AND a Nurse. A perfectly healthy part of my anatomy was cut off with a scalpel, all without the slightest bit on anesthesia...Yeah I talked, I said ARGHHHOUCHIEOWOWOWOW, but the didn't care, carried out their task like automatons, even charged my parents for it...
And some 46 years later I'm reminded of that day, every time I take a leak...
And its STILL bein carried out, in hospitals in every county of every state, even Vermont and Cal-ee-forn-i-a.
And nobody does anything, its even touted as a Preventive Health measure, chopping off something that God put there for a reason, or if you're an atheist, that Evolution hadn't decided to get rid of yet (naturally, anyway) And if you just sit around while it goes on, you're no better than the guy with the knife...
5.16.2009 4:53pm
Dave N (mail):
Jukebox,

First, I made a direct quote from the WaPo. Maybe you should take it up with them. You asked where the numbers came from. I found a source (the CBO) reported on by a major newspaper, the Washington Post, that both had an increase in the national debt in the 9 trillion dollar range.

Now, the WSJ article does provide some context. The table in your link shows that the national debt would rise by over $4 trillion if Obama did nothing and the nation went on automatic pilot.

I would agree that the 2007 numbers count for President Bush--except to the extent there has been supplemetnal appropriation since January 20 of this year.

It would seem that the CBO makes it calcuations on the theory that our budget system is not zero-based--which is a good assumption since it is not. Thus, for example, decisions made by the Bush Administration will have impact well into the Obama Administration--just as decisions made by the Obama Administration will have an impact on whomever his successor is.

Second, I did a bit of further research. It is still an open question with respect to extradition based on a diplomatic passport. On the one hand, the House of Lords upheld Pinochet's extradition from Great Britain to Spain, Britain also decided not to actually extradite Pinochet and allowed him to return to Chile purportedly because he was in ill health. Additionally, there was discussion at the time as to whether what Britain did was proper in agreeing to arrest Pinochet in the first instance.

Finally, you are obviously not a prosecutor and apparently don't undertand the discretion that the executive has in whether to charge crimes. Absent a specific statutory language to the contrary requiring prosecution (found in some DUI and domestic violence statutes), the prosecutor is under no obligation to prosecute anyone. If you would provide me with specific language in the CAT that mandates prosecution, I would be interested in seeing it.
5.16.2009 4:59pm
trad and anon (mail):
John Moore, thank you for the clarification. Waterboarding is suffocation that induces the psychological effects of drowning. In turn it can induce physiological effects, such as spasms in the laryngeal muscles, requiring a physician to perform an emergency tracheotomy so the victim can breathe.

I thought it was the other way around, that the physiological effects induced the psychological ones. But it doesn't really matter, since the physical effects are basically the same either way.
5.16.2009 5:10pm
Oren:
Franklin, parents can consent to reasonable medical treatment on behalf of their kids.
5.16.2009 5:32pm
Moneyrunner43 (www):
The Wall Street Journal comments on something that appears to have been lost on Liberals in the discussion of the Bush policies regarding captured enemy combatants.



President Obama's endorsements of Bush-Cheney antiterror policies are by now routine: for example, opposing the release of prisoner abuse photographs and support for indefinite detention for some detainees, and that's just this week. More remarkable is White House creativity in portraying these U-turns as epic change. Witness yesterday's announcement endorsing military commissions.

White House officials insist that their tribunals will be kinder and gentler, stressing additional due-process safeguards for terrorists on trial for war crimes. But the debate that has convulsed the political system since 9/11 isn't about procedural nuances. It has been over core principles, with Democrats decrying a "shadow justice system" and claiming that "Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists."



Let me add to that.
One definition of insanity is an ability to hold two opposing views at the same time.

One view is that the Geneva conventions apply to the people we capture as enemy combatants and they deserve to be treated as soldiers. And one of the protections afforded by the Geneva conventions is that soldiers cannot be tried in civilian courts. Even opponents of the way Bush handled the situation agree. Here is George P. Fletcher who is Cardozo Professor of Jurisprudence at the Columbia University School of Law.


And if they were combatants, then by the rules of international law we were not entitled to try them for acts committed in the pursuit of legitimate aims of war. As Chief Justice Harlan Fiske Stone wrote for the Supreme Court n Quirin: "Lawful combatants are subject [only] to capture and detention as prisoners of war by opposing military forces." The reason for this rule lies in the general understanding that a soldier is simply a servant of the state. He does not do anything in his own name. He cannot be held personally liable for the ravages of war.





The second view is that they are not soldiers but criminals. Those holding this view are often seen citing the Geneva Conventions as if those applied to common criminals. But if they are criminals they cannot be convicted under US law because their interrogations were not preceded by Miranda warnings. In fact most of them were apprehended on foreign territory over which Americans do not hold jurisdiction. They were not properly extradited. They were not given a speedy trial. If they are criminals they should all be released because their civilian trials would be an obvious farce.

But we still have the Left, struggling – like Nancy Pelosi – trying to reconcile two irreconcilable things: they are both criminals and lawful combatants having all the protections of Geneva and the US criminal justice system.

The Bush administration took the position that they were not soldiers. According to Fletcher to be a soldier meant that

“among other things, that you had to wear a uniform, fight with your company, and cease fighting when the army surrendered.”



This is not the opponent that we are fighting now.

To handle a new kind of enemy, Bush found a new framework, handling them neither as criminals not as enemy soldiers. Since they could not be tried as criminals and the possibility existed that holding them until the cessation of hostilities may be a very long time, he provided for humane treatment and also for a legal system that would allow them to be released before the end of hostilities if they were judged not to be a threat.

The WSJ editorial ends:

Meanwhile, friends should keep certain newspaper editors away from sharp objects. Their champion has repudiated them once again.



But who can know what's in the hearts of the giggling girls in the press corps? They adore him and that won't change.
5.16.2009 5:42pm
Franklin Drackman:
Oh, a lawyer supporting torture...that must make it OK...
So how come FEMALE circumcision in Africa is such a no-no??, the parents consented to it...
5.16.2009 5:42pm
MarkField (mail):

I agree with Greenwald, but it is worth pointing out that even he isn't suggesting the "conservative" response is remotely acceptable, or better


Agreed that the pro-torture side is FAR worse. As for Greenwald, he tends to say everything more forcefully than I say anything, so while I often agree with him, I sometimes don't agree quite so MUCH!!!!! If you get what I mean.

My basic view is pretty close to Anderson: I'm very disappointed at the idea of military commissions, but I'm waiting to see how they operate before I lose patience entirely.


Isn't it appropriate to ask if that "enemy" would loudly proclaim "We are torturers and are going to publicly release proof and investigate ourselves!"


No. Not unless you want us to be equated with them morally. I always thought it was our goal to be better than "them". That's what made us the good guys.


And did you notice how WP defined "the next decade?" That phrase is a reference to the period 2009-2019.


While this is off topic to this thread and I'm inclined, therefore, to leave it be, there's an even bigger flaw in the video than the ones you've already noted: there's no baseline of comparison. Criticizing Obama's deficits only makes sense in consideration of the alternatives. One alternative, obviously, is to go into a Depression. That'll put an end to any worries about inflation. Another alternative was to keep spending like Bush. That would have resulted in huge deficits too. Since we don't really know what President McCain would have done, the criticism is pretty much pointless. Like most of what we see from the Right.
5.16.2009 5:48pm
Moneyrunner43 (www):
Oren,

FYI circumcision is a medical procedure, not a treatment since there is nothing medically wrong with an uncircumcised male. Procedure … not treatment. Repeat until you understand. Arguably unnecessary and possibly dangerous.
5.16.2009 5:48pm
trad and anon (mail):
Oh, a lawyer supporting torture...that must make it OK...
So how come FEMALE circumcision in Africa is such a no-no??, the parents consented to it...

Not that I am such a great fan of circumcision, but there is no such thing as "female circumcision." The procedure you're referring to is analogous to cutting off the first inch of the penis.
5.16.2009 5:49pm
MarkField (mail):
I see that Dave N beat me to the punch with some evidence of context. That's a good start and a good example for some of the posters.
5.16.2009 5:51pm
Moneyrunner43 (www):
It’s rather interesting to see the Left arguing that it’s not the concept of military commissions but the details that bothered them. Nancy Pelosi doesn’t do this well either when she tries to lie. Lying is an art form; don’t try it at home. Leave it to the experts: Clinton (“I did not have sex…”), Obama (“Just a guy living in my neighborhood”), Biden (I’m smarter than you) , Frank (I never, never said that Fannie and Freddie were safe), …
5.16.2009 5:55pm
Moneyrunner43 (www):
T &A: interesting screen name.
5.16.2009 5:59pm
PC:
Moneyrunner43, Bush ("We don't torture").
5.16.2009 6:00pm
Moneyrunner43 (www):
PC
We don't.
5.16.2009 6:04pm
trad and anon (mail):
Moneyrunner,

At least not at the moment.
5.16.2009 6:25pm
Moneyrunner43 (www):
T&A
Not in the past either.
5.16.2009 6:29pm
PC:
At least not at the moment.

Apparently we stopped back in 2004. Which inevitably leads one to wonder why the Bush administration risked the safety of the US if torture works so well?
5.16.2009 6:31pm
wm13:
Maybe Marty Lederman WILL be hiring Bart DePalma, after all, to help him brief this issue.

Seriously, wouldn't someone in his position resign if he had any integrity? I mean, the line from the left professoriate over the past six years hasn't been about how the rules of evidence relating to hearsay admissibility in military commission proceedings need some adjustment, and suchlike.
5.16.2009 6:34pm
Perseus (mail):
I used to hear conservatives complain about liberals' supposed "moral relativism." Now it's all about the other guy being worse.

And therein lies the distinction. Relativists believe that there is no objectively superior moral choice in any given situation ("whatever works for you"), unlike most teleological or consequentialist theories, which hold that there is a morally superior choice even if the choice is a lesser of two evils. Those who argue that torture is always wrong subscribe to a kind of deontological moral absolutism, which is all very well and good if you have a Progressive (or even providential) view of History and don't mind being History's sacrificial lamb.
5.16.2009 7:01pm
PC:
Those who argue that torture is always wrong subscribe to a kind of deontological moral absolutism, which is all very well and good if you have a Progressive (or even providential) view of History and don't mind being History's sacrificial lamb.

Those who argue that torture rape is always wrong subscribe to a kind of deontological moral absolutism, which is all very well and good if you have a Progressive (or even providential) view of History and don't mind being History's sacrificial lamb.

Hmm. Maybe:

Those who argue that torture slavery is always wrong subscribe to a kind of deontological moral absolutism, which is all very well and good if you have a Progressive (or even providential) view of History and don't mind being History's sacrificial lamb.

Or even:

Those who argue that torture genocide is always wrong subscribe to a kind of deontological moral absolutism, which is all very well and good if you have a Progressive (or even providential) view of History and don't mind being History's sacrificial lamb.

Interesting.
5.16.2009 7:06pm
Just an Observer:
MarkField: My basic view is pretty close to Anderson: I'm very disappointed at the idea of military commissions, but I'm waiting to see how they operate before I lose patience entirely.

For my part, as you know, I accept the basic premise that we are at war against an unconventional enemy pursuant to the AUMF, and that the law of armed conflict, including Geneva CA3, applies.

I also think that the center of gravity the Supreme Court has established in the series of detainee cases will not be upset by congressionally sanctioned military commissions,, even though human rights advocates will argue otherwise. Some of the details are debatable, and Obama's proposals are better than the Bush's version.

As I understand it, the Military Commissions Act allows some rules to be changed by the president with notice to Congress, but the announcement seems to contemplate some legislative amendments. That will be interesting, because opening this up as a legislative vehicle might give members of Congress with different ideas a chance to work their will -- for better or worse.

(I wonder if anyone would try to revisit the 2006 amendments to the War Crimes Act that were passed along with the MCA. The makeup of Congress has shifted since then. Restoring the plain Geneva definitions in the statute, instead of relying on Obama's executive order to do so, would be a plus. I don't trust what a President Palin and Atty. Gen. Andy McCarthy would do a few years from now.)

Politically, with Obama moving closer to the McCain-Graham position on military commissions, it will now be interesting to see if McCain reciprocates. So far he has been shamefully demagoguing along with his party on the question of relocating Guantanamo detainees stateside.
5.16.2009 7:11pm
Moneyrunner43 (www):
PC
Since I am not privy to the needs of the intelligence community I can’t say why techniques you try to define as torture have not been used since 2004 (assuming that is the case). But I can hazard a guess: we have gotten all the information we need from high value detainees. After a few years of intelligence gathering and development we may have other means of getting information.

We don’t use harsh interrogation techniques because we get our jollies from using them. We are not – after all –similar to the kinky sex groups in SF. We leave the gratuitous stuff to Ms. Pelosi’s constituents.

As an aside, you're not much of a student of history are you?
5.16.2009 7:35pm
Moneyrunner43 (www):
JAO,

So far he has been shamefully demagoguing along with his party on the question of relocating Guantanamo detainees stateside.
You have the votes and believe you have the moral high ground. Just move them stateside. What do you need Republican approval for? As Obama said “I won.” Show some courage man. What could go wrong?
5.16.2009 7:42pm
jukeboxgrad (mail):
adler:

The sources and assumptions used in the video are detailed here.


Thanks for the link. OK, I see what he's doing. Unfortunately, he's doing some strange things, and it mostly has to do with his bizarre approach to inflation.

He says that GWB increased the debt by $2,989 billion. How does he get that? He looks at numbers here, which show that the national debt was $5.7 trillion on 9/30/00, and $10.0 trillion on 9/30/08. Then he uses the inflation calculator here to translate the figure for 2000 into current (2008) dollars. The calculator tells us that what cost $5.7 trillion in 2000 would cost $7.0 trillion in 2008 (that implies an annual inflation rate of 2.7%). Therefore he claims that GWB added about $3 trillion to the debt (based on expressing the 2000 debt in 2008 dollars).

Fair enough, I guess. Trouble is, he takes a very different approach to Obama's numbers. What he said is this:

Actually (and I would do this over again if I could) I calculated the future debt with regards to inflation (I assumed about 1.0% inflation per year) so that President Obama is going slower than if I just used his own numbers. I tried to bend the numbers to Obama’s advantage,  not because I agree with him, but so that there is no room for the accusation of number fudging.


Huh? What? What he said he would do is not fair (it does not "bend the numbers to Obama’s advantage"). And what he actually did is not even what he said he would do.

He is getting Obama's numbers from here (pdf). See p. 22 in Adobe Reader. The relevant numbers are 9,986 (Total, gross Federal debt, actual 2008) and 20,018 (Estimate 2016). That shows an absolute increase of $10 trillion. But the number should be adjusted for inflation, right? Just like he did for GWB, right? So the next question is, what's the right inflation rate to use? What's inflation going to be for the next 8 years? Answer: no one knows. But 'politicalmath' decides to pull the number 1% off the top of his head. And that brings us to the first problem. He claims to be using that number, but he seems to be not using that number.

If I assume 1% annual inflation between 2008 and 2016, and I want to take the figure 20,018 in 2016, and convert that to present (2008) value, the result is 18,486. If I compare that number to the current (2008) debt of 9,986, the difference is 8,500. But he said Obama increased the debt by 9,979. 9,979 does not equal 8,500. So while he claims to have applied an inflation rate of 1%, his numbers show that he actually applied an inflation rate of about 0.4%.

And aside from that, what is the reasoning behind assuming that inflation in the period 2008-2016 will be much lower than inflation in the period 2000-2008? If he had applied to Obama the same inflation rate (2.7%) that he applied to Bush, then the 2016 debt would be 16,175, when expressed in current (2008) dollars. Which would mean that the amount Obama added to the debt was 6,189. And that is a long way from the number that was claimed (9,979).

By the way, CBO forecasts low inflation for the next few years, but definitely not as low as the number that 'politicalmath' seems to have used. So his claims are correct only if one thinks it's legitimate to apply an inflation adjustment to the GWB numbers, while also assuming that there will be almost no inflation under Obama.

Aside from all that, there's another very confusing element. A lot of the discussion about national debt focuses on what's called debt held by the public. 'politicalmath' is using a different definition, which makes his numbers hard to compare with most of the statements that are being made elsewhere.

It's worth noting that even if Obama manages to double the debt, he will still have not matched (in percentage terms) what Reagan did. Under Reagan the national debt tripled. The national debt is 11 times higher than it was when Reagan took over. 77% of our debt was accumulated during three GOP administrations: Reagan, Bush and Bush.
5.16.2009 7:57pm
jukeboxgrad (mail):
dave n:

I made a direct quote from the WaPo. Maybe you should take it up with them.


No, I don't need to "take it up with them," because I don't subscribe to the wacky theory that they have a liberal slant. This instance is evidence of the opposite. Just because WP said something doesn't mean that it's true, or fair, or biased toward Obama. On the contrary.

I found a source (the CBO) reported on by a major newspaper, the Washington Post, that both had an increase in the national debt in the 9 trillion dollar range.


And that increase is over a period of 11 years. So it only makes sense to assign the responsibility to Obama (which is exactly what people like bernstein seem to be doing) if you think Obama will have an 11-year term.

I would agree that the 2007 numbers count for President Bush


Huh? What? I hope you mean 2009. And it's very important to notice that the graphic lots of people are promoting takes the approach (visually) of assigning 2009 to Obama. And 2009 is the worst year on the graphic, by far, which makes that assignment very disingenuous.

decisions made by the Bush Administration will have impact well into the Obama Administration--just as decisions made by the Obama Administration will have an impact on whomever his successor is.


Exactly. Which means that things aren't simple. Which means that the oversimplified graphic and the oversimplified video are disingenuous.

It is still an open question with respect to extradition based on a diplomatic passport.


You seem to be relocating the goalposts. Your earlier claim did not seem to be a claim about immunity from extradition. It seemed to be a claim about immunity from arrest. You were responding to someone who said this: "if they traveled to Spain of their own accord."

If you would provide me with specific language in the CAT that mandates prosecution


I already did.
5.16.2009 7:57pm
jukeboxgrad (mail):
money:

Obama (“Just a guy living in my neighborhood”)


When you put quote marks around something the person didn't actually say, you are proving that you don't expect to be taken seriously.

Not in the past either.


When the Japanese did waterboarding the way we did it, we called it torture and we prosecuted them. I guess you want to be added to the long list of people who claim we didn't torture, but also refuse to explain why we called waterboarding torture when the Japanese did it.

And I hope you'll explain why you're holding onto your indefensible position even though we've reached the point where certain prominent GOP partisans have finally been forced to admit that waterboarding is torture.

I can hazard a guess: we have gotten all the information we need from high value detainees. After a few years of intelligence gathering and development we may have other means of getting information.


You're ducking the question. You're claiming that Cheney stopped torturing because there was no longer any need for torture. But if there's no longer any need for torture, why is Cheney claiming that Obama's refusal to torture is endangering us?

I can’t say why techniques you try to define as torture have not been used since 2004 (assuming that is the case).


According to the CIA, they haven't waterboarded anyone since 3/03. But if we need torture to keep us safe, why did they stop using that wonderful form of torture? What pressing need did we have prior to 3/03, that we no longer have? I can think of one: the need to generate false confessions for the purpose of selling the war.

======================
pc:

Moneyrunner43, Bush ("We don't torture").


Indeed. And he said that repeatedly. And he also told a bunch of other lies, like these:

- we found the weapons of mass destruction
- he wouldn't let them in
- a wiretap requires a court order
5.16.2009 7:57pm
jukeboxgrad (mail):
perseus:

Those who argue that torture is always wrong


Have you read the statute? According to the statute, "torture is always wrong." Sorry to break it to you. If you don't like that, you should lobby Congress to change the law.

Let us know what you think of "those who argue" that certain government elites should be considered above the law.

I also wonder what you think of "those who argue" that torture is so powerful it can achieve time travel.

I also wonder what you think of "those who argue" that generating false confessions for the purpose of selling an unnecessary war is a reasonable justification for torture.

By the way, you might be shocked to know about some of the people who have said that "torture is always wrong." Like St. Ronnie. Greenwald points out that Reagan's views on torture are now considered Hard Left:

The views that Ronald Reagan not only advocated, but signed a treaty compelling the U.S. to adhere to, are ones that are now -- in the view of our dominant media narrative -- the hallmarks of The Hard Left:  torture is never justified; there are "no exceptional circumstances" justifying it; it must be declared to be a serious criminal offense ; and -- most of all -- the U.S., as Ronald Regan put it, "is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution."


Kmiec also makes reference to what Reagan signed:

Cheney's Ethics--Can Torture's Success Be Its Ethical Justification? - So does it matter if aggressive interrogation--viz. torture--is a successful means of gaining actionable intelligence?

More than once in the last few days I have heard the former vice president or others advocate that President Obama release other classified materials in order to demonstrate the effectiveness of aggressive interrogation techniques. The ethical and legal assumptions under this line of argument will be troubling to many. If torture has been declared an intrinsically evil act (i.e., wrong regardless of context), which I take it is the point of the United Nations convention which we [specifically: Reagan] signed, ratified, and incorporated into our criminal law, what exactly is the point of the former vice president's argument…


Kmiec used to work for Reagan.

which is all very well and good if you have a Progressive (or even providential) view of History and don't mind being History's sacrificial lamb


So Reagan was "a Progressive." Who knew?
5.16.2009 7:58pm
PC:
Since I am not privy to the needs of the intelligence community I can’t say why techniques you try to define as torture have not been used since 2004 (assuming that is the case).

It's not my definition, it's the definition of the Reagan DoJ, the Fifth Circuit Court of Appeals, the Mississippi Supreme Court, the ICRC, etc. They are all much more qualified than I to determine what torture is, so I'll defer to their professional opinions.

As an aside, you're not much of a student of history are you?

More of a student of political philosophy, but history and philosophy are closely intertwined. Why do you ask?
5.16.2009 8:04pm
Brian G (mail) (www):
I love the people above who ascribe moral equvalence to Al-Qaeda and the Taliban to us. If there is no difference, why aren't any of you moving to glorious Afghanistan to live? After all, what's the difference right?
5.16.2009 8:11pm
byomtov (mail):
The sources and assumptions used in the video are detailed here.

Yeah. If it's on a right-wing web site it must be correct.
5.16.2009 8:37pm
MarkField (mail):

I wonder if anyone would try to revisit the 2006 amendments to the War Crimes Act that were passed along with the MCA. The makeup of Congress has shifted since then. Restoring the plain Geneva definitions in the statute, instead of relying on Obama's executive order to do so, would be a plus. I don't trust what a President Palin and Atty. Gen. Andy McCarthy would do a few years from now.


Yes, and repealing the immunity provisions would be even better. But I'm not holding my breath.
5.16.2009 8:38pm
MarkField (mail):

Relativists believe that there is no objectively superior moral choice in any given situation ("whatever works for you"), unlike most teleological or consequentialist theories, which hold that there is a morally superior choice even if the choice is a lesser of two evils. Those who argue that torture is always wrong subscribe to a kind of deontological moral absolutism, which is all very well and good if you have a Progressive (or even providential) view of History and don't mind being History's sacrificial lamb.


I don't personally see any reason why one can't be a relativist most of the time, but a moral absolutist on a few issues such as slavery, genocide, rape, child molestation, torture, and perhaps a few more. There do seem to be lots of relativists willing to justify those crimes, though.
5.16.2009 8:42pm
SG:
It's worth noting that even if Obama manages to double the debt, he will still have not matched (in percentage terms) what Reagan did. Under Reagan the national debt tripled. The national debt is 11 times higher than it was when Reagan took over. 77% of our debt was accumulated during three GOP administrations: Reagan, Bush and Bush.

Why do you keep repeating this like it's some defense of Obama? It isn't. Obama's doubling will compound the Reagan, Bush and Bush's debts. If you find the budgetary discipline of those three troubling (as I do - bring back Clinton and a Republican Congress), doubling it yet again is worse than all of those combined because it will be more than all of them combined.

So, no, it's not worth noting. It's a foolish talking point that's either a smoke screen intended to confuse the innumerate or a unintended confession of innumeracy on your part. But under no circumstances does it provide an justification for Obama's reckless budgetary policies.
5.16.2009 8:57pm
jukeboxgrad (mail):
sg:

Why do you keep repeating this like it's some defense of Obama?


Why do you keep pretending that a statement which is not a defense of Obama is a defense of Obama? There are separate arguments to explain Obama's budget decisions. But the point of remembering the history is to realize that the born-again budget hawks who sat on their hands while Reagan tripled the national debt, and while Dubya almost doubled it, have no credibility when they suddenly make a fuss about Obama. How many tea parties did they hold to protest Reagan and Bush? Where were they when Cheney said "deficits don't matter?" Where have they been? Awfully quiet, for the most part.

So I'm open to hearing about budget complaints, but not from them. Because they have no credibility.

An odd thing about the GOP is that it seems to have no problem with spending lots of money on nation-building, but only if the nation is someone else's. Maybe this has something to do with the fact that colossal contract shenanigans are much easier to hide when they happen on the other side of the planet and are obscured by the fog of war.
5.16.2009 9:19pm
Perseus (mail):
Hmm. Maybe:

Those who argue that torture slavery theft, lying, etc. is always wrong subscribe to a kind of deontological moral absolutism, which is all very well and good if you have a Progressive (or even providential) view of History and don't mind being History's sacrificial lamb.


And just how far are you willing to go with your deontological moral absolutism? At least Kant had the virtue of rigid consistency and did not make casuistic exceptions.

I don't personally see any reason why one can't be a relativist most of the time, but a moral absolutist on a few issues such as slavery, genocide, rape, child molestation, torture, and perhaps a few more.

You cannot consistently be a moral absolutist and a moral relativist, unless you define moral relativist as anyone and everyone who isn't an absolutist, which would include both a full blown moral relativist like Thrasymachus as well as someone like Socrates.

And speaking of Thrasymachus, Doug Kmiec seems to have learned from his example very well.
5.16.2009 9:34pm
Owen Hutchins (mail):
I'm just going to have to post this here, but Adler's several attacks via stupid videos against President Obama, without allowing comments, are really getting annoying.
5.16.2009 9:58pm
Dave N (mail):
Jukeboxgrad,

Yes, the 2007 was a typo.

I looked at the CAT (I have no idea why you linked to my first post instead of, say, the CAT itself or actual federal law--I figure you know how to link so I will ascribe the worst possible motive to this error, since, as you know, that is your favorite tactic).

There is nothing in the language of the CAT that removes discretion from the government to prosecute.

For example, Article 4 provides:
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
There is nothing in this article that mandates prosecution--which was my point. Likewise Article 6 provides:
1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts.

3. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.
Nope, no mandatory prosecution here either. The closest language are various uses of the word "shall," but none read "shall prosecute" (I looked, you obviously did not). However, Article 7 makes my point:
1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

2. 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. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.
Note the language is section 2, however, which obviously contemplates that prosecutors use the same standards as they would use for making any other prosecutorial decision.The CAT does not require prosecutions--something any prosecutor (or defense attorney) would know by reading the actual language of CAT. The United States Code provides even less support to your claim that CAT is somehow mandatory (18 U.S.C. § 1740A):
(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

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

(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
Again, there is no mandatory language. You provide no proof whatsoever that either CAT (which is not self-implementing) or 18 U.S.C. § 2740A which is actual federal laws.

Bottom line, you don't know you were talking about and, in fact, display your ignorance when it comes to criminal law.
5.16.2009 10:05pm
Oren:


I don't personally see any reason why one can't be a relativist most of the time, but a moral absolutist on a few issues

Because then you are always doubting whether you categorize those "issues" first and then make a judgment or if the categories are just a rationalization for what you happen to believe.
5.16.2009 10:11pm
SG:
So I'm open to hearing about budget complaints, but not from them. Because they have no credibility.

No, the people with no credibility are the people who complained about Republican deficits but don't complain about Obama's deficits, i.e., you. The hypocrites are those who complained about $400 billion deficits but not about $1.8 trillion deficits, i.e. you again. The smallest (optimistically projected) Obama deficit will be larger that GWB's largest (actual) deficit. No one honest can condemn Republican deficits without also condemning Obama's deficits. The converse is not true.

You are not honest.
5.16.2009 10:33pm
MarkField (mail):

You cannot consistently be a moral absolutist and a moral relativist, unless you define moral relativist as anyone and everyone who isn't an absolutist, which would include both a full blown moral relativist like Thrasymachus as well as someone like Socrates.


A foolish consistency....


Because then you are always doubting whether you categorize those "issues" first and then make a judgment or if the categories are just a rationalization for what you happen to believe.


Since I see this problem as affecting every system of morals, it doesn't bother me.
5.16.2009 10:38pm
Desiderius:
MarkField,

If you're hankering for some absolutism, if these two threads are any indication, you're about to get some. If history is any indication, you'll not much like what it brings in its train.
5.16.2009 10:42pm
Guest12345:
JBG:

But the point of remembering the history is to realize that the born-again budget hawks who sat on their hands while Reagan tripled the national debt, and while Dubya almost doubled it, have no credibility when they suddenly make a fuss about Obama. How many tea parties did they hold to protest Reagan and Bush? Where were they when Cheney said "deficits don't matter?" Where have they been? Awfully quiet, for the most part.


You back to making stuff up again? In year 2000 dollars Reagan doubled the debt from just under $2 trillion to just under $4 trillion (even uncorrected for inflation it didn't triple.) Regardless, in traditional JBG stupidity, you demonstrate your total inability to engage any in sort of rational thought. Doubling or tripling, who cares? Realizing that you prefer a big shiny nickel to a grungy little dime, I know this might be hard for you to understand, but what matters is the amount. If you want to compare Reagan and Obama, why don't you try this: in eight years in office, Reagan added $2 trillion to the debt. By contrast, Obama has already budgeted $3 trillion in new debt for just the next two years. Another trillion-plus for the following two years and as a gift for the next president, another two trillion for those four years. (And those are Obama's numbers. The CBO puts it quite a bit larger.)

Why don't you do everyone a favor and have someone less dishonest proofread your posts before you barf them all over the internet?
5.16.2009 10:52pm
RPT (mail):
"OH:

I'm just going to have to post this here, but Adler's several attacks via stupid videos against President Obama, without allowing comments, are really getting annoying."

FWIW, Lindgren's are worse. Not allowing comments is an admission of weakness; like trying to win by default, or controlling the mute button on the microphone, as with O'Reilly and Limbaugh.
5.16.2009 11:06pm
Oren:

Since I see this problem as affecting every system of morals, it doesn't bother me.

It's a wonder you even bother trying to debate intelligently with other people at all.
5.16.2009 11:29pm
John Moore (mail) (www):
trad and anon wrote

Not true. Waterboarding is a procedure in which somebody is drowned, but you stop before they die. As it happens, it only takes a few seconds of pouring to produce all the physiological effects of drowning.

On which I called BS:
Drowning involves inhaling water instead of air, which does not happen in water-boarding. Obviously, the physiological effects of filling your lungs with water is different from waterboarding.

Those asserting the "drowning physiology" idea are either careless, clueless about physiology, or don't know what the word means.

Waterboarding produces the psychological effects of near-drowing. In other words, it produces the extreme anxiety which causes someone near drowning to try to save themselves at any cost.
5.16.2009 11:36pm
John Moore (mail) (www):
OOPS 0- hit post meant to hit blockquote... continuing

trad and anon wrote

Not true. Waterboarding is a procedure in which somebody is drowned, but you stop before they die. As it happens, it only takes a few seconds of pouring to produce all the physiological effects of drowning.


On which I called BS:

Drowning involves inhaling water instead of air, which does not happen in water-boarding. Obviously, the physiological effects of filling your lungs with water is different from waterboarding.

...

Waterboarding produces the psychological effects of near-drowing. In other words, it produces the extreme anxiety which causes someone near drowning to try to save themselves at any cost.


At which point trad and anon changed the definition:

This is not remotely accurate. Waterboarding almost immediately produces gagging, choking, gasping for breath, and random flailing, which are exactly the physiological correlates of drowning. It also produces the same sorts of physical stress responses as drowning. If you continue the procedure the person will die due to lack of oxygen.

The person believes themselves to be drowning because they're experiencing all the physical reflexes associated with drowning. The fact that water is not inhaled (which may or may not be true depending on exactly how the procedure is performed) is almost beside the point.

Note we went from waterboarding = drowning not to death, to the "physiological correlates" - which is exactly my point.

Gagging, choking, gasping for breath and drandom flailing are NOT drowning. Furthermore, what happens if you continue the procedure is utterly irrelevant, since the point is to extract information. Nobody is going to die due to lack of oxygen after 40 seconds. It takes several minutes for lack of oxygen to produce death or anything close to it.

Alec chimes in

As the prisoner gags and chokes, the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia, rapid heart beat and gasping for ...


Exactly. The purposes of waterboarding is to produce intense anxiety, which always has physiological stress responses ( so do lots of other activities ).
Err, btw, tachycardia IS rapid heart beat.

Is producing intense anxiety in the torture statute? Didn't see it there (unless you include direct threats of death).
5.16.2009 11:44pm
Just an Observer:
Moneyrunner43: You have the votes and believe you have the moral high ground. Just move them stateside. What do you need Republican approval for?

First, I don't have any votes. I am an independent.

I am simply making a sad observation about John McCain's lack of statesmanship. I clearly heard him say during the 2008 campaign that if he were president, he would close the Guantanamo prison and transfer the detainees to Fort Leavenworth. Now he just makes partisan catcalls about "not in my back yard" politics.

Quite sad, really. John McCain used to show leadership sometimes. Now he's just that old guy who ran for president with Sarah Palin.

I have little respect for your own NIMBY catcalls, either. If you had any real patriotism, you would tell people what I do: We are at war. Suck it up and make sacrifices. You apparently do the opposite.
5.17.2009 12:08am
MarkField (mail):

It's a wonder you even bother trying to debate intelligently with other people at all.


I'm sure there are those who don't think I do. But I really wasn't trying to start a debate on systems of ethics; that's way off topic. I was just making an offhand comment about the way I see things.

I don't make any pretense that I have some kind of sophisticated system. I'm aware of the fact that moral absolutes create significant logical problems -- it's always possible to come up with hypotheticals in which one absolute competes against another -- so I'm more comfortable generally with other systems. I just think that most people recognize that there are a few issues which they won't bother debating with anyone (genocide, to pick an obvious example), and which therefore constitute de facto absolutes regardless of other moral theory.
5.17.2009 12:12am
TGGP (mail) (www):
This comment is intended for Adler's post on deficit visualizations directly above. Bruce Bartlett points out that much of the projected deficit was priced by the CBO before Obama even came in and had any effect on what policies would be enacted, so some of the blame should be shifted to his predecessors.
5.17.2009 12:20am
einhverfr (mail) (www):
John Moore wrote:

Waterboarding produces the psychological effects of near-drowing. In other words, it produces the extreme anxiety which causes someone near drowning to try to save themselves at any cost.


Accepting that the term "waterboarding" encompasses a large number of practices including the ones you describe (tricking the mind into thinking one is drowning), that still doesn;t get you off the hook.

US law defines torture as the infliction of severe physical or mental pain, and includes in that definition any administration of drugs or techniques intended to disrupt the personality. It would seem to my mind that even the most mild forms of waterboarding fit this definition.
5.17.2009 12:31am
John Moore (mail) (www):
Well, the original "hook" was my description of torture, not any assertion that waterboarding did not fit the statute. I did suggest that extreme anxiety wasn't in the statute

However, is extreme anxiety "severe mental pain?" It would seem the statute was written to be malleable... so that politicians could claim to be "tough on terror" when appropriate, and "tough on torture" otherwise. And sure enough, here we are 7 years after the time when most of the nation and the national security apparatus thought we were in serious danger, and folks have shifted to the "tough on torture." Including "extreme anxiety" in "severe mental pain" is obviously a matter of opinion, not settled fact.

It is fun, however, to watch Pelosi twist in the wind.
5.17.2009 12:37am
einhverfr (mail) (www):
My view on Obama:

I voted for Obama because I felt he had a better civil rights record than McCain (except for the torture issue, McCain's civil rights record is not terribly great).

Obama has shown that he is willing to slide further than Bush in areas regarding telecom immunity, state secrets, and has not shown a real commitment to transparency. Obama deserves failing grades where it comes to reversing course on the worst of the Bush administration policies. There are some rays of hope but they are greatly obscured.

This being said, in these areas, I still have no doubt that McCain would have been worse. McCain-Feingold was one strike against McCain in my book that I couldn't get over.

Look: when you decide to vote for a candidate, pick the issues that matter to you and look at their records. Politicians make large numbers of campaign promises that they have to or choose to walk away from ("Read my lips. No new taxes. We do not need any more taxes"). I don;t care about the broken campaign promises because I don't expect politicians to make good on them.
5.17.2009 12:38am
einhverfr (mail) (www):
John Moore:

I would argue that a sense of impending death by drowning is, in fact, severe mental pain by any definition.
5.17.2009 12:40am
SG:
US law defines torture as the infliction of severe physical or mental pain, and includes in that definition any administration of drugs or techniques intended to disrupt the personality. It would seem to my mind that even the most mild forms of waterboarding fit this definition.


See, that's the thing that jumped out at me when I read the first "torture" memo. They did draw a line - it was telling Zubaydah that an insect was poisonous. That would have been going too far.

Clearly the administration was looking to go up to the line and, given that the line isn't a bright one, I can respect those who think they crossed it. But they did draw a line. This wasn't (officially, at least) unrestricted cruelty. I read the memos as a good faith effort to try to define what was permissible (and impermissible) while attempting to gather information in defense of the country. And remember that this was directly in the shadow of 9/11. Given the benefit of hindsight they may have gone too far but, given the context, it's not understandable.

Nor do I for a second believe that most of the same people complaining about "torture" now would not be complaining even more loudly had we been attacked again while holding a prisoner who had information that could have thwarted the attack and we had a self-imposed restriction to Geneva CA3. I don't believe that most of the people complaining now would have complained had Bush had a (D) after his name. It's any weapon to hand when there's a partisan to be vanquished.

(And I put "torture" in scare quotes because I just don't find anything done as SOP during training, or something that journalists will volunteer to undergo, as torture. Yes, there's a difference between a volunteer and an unwilling participant, but if a reasonable person will voluntarily undergo a procedure, I can't believe it's torture. It fails to shock my conscience. But again, I recognize that reasonable people might differ.)
5.17.2009 12:42am
Just an Observer:
Convention Against Torture: 2. 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.

Indeed. Yes, there is prosecutorial discretion, because the treaty commits signatory nations only to "submit the case to its competent authorities for the purpose of prosecution."

The quoted standard above defines just how little discretion amounts to under CAT. In our domestic law enforcement, crimes such as torture are taken very seriously. The typical "manner" that cases of serious crimes like torture under color of law and related conspiracy are investigated in our country is by grand jury investigation.

If an official of our government, acting under color of law, waterboarded a domestic prisoner, that official surely would be prosecuted. There would be no slack cut whatsoever on the smarmy grounds that it would be "criminalizing policy disagreements."

Actually, a Texas law-enforcement officers were prosecuted and convicted for waterboarding a prisoner several years ago, and the Fifth Circuit called it "torture" multiple references in its opinion. (Funny how Jay Bybee failed to mention that case in his memos.)
5.17.2009 12:56am
Alec:
John,

My specific objection is to your description of it as something akin to holding one's breath for an uncomfortably long period of time. I'm not a physician (although I quoted one), but everything I've read about waterboarding suggests that description is way off the mark. Indulge whatever fantasies you have about Pelosi "twisting in the wind" as you put it, but at least treat torture with the gravity it commands.
5.17.2009 12:58am
einhverfr (mail) (www):
SG: I think that there are many who engage in partisan politics over the torture issue. Me? I believe in defending civil liberties. I am methodologically conservative, but this leads me to argue AGAINST backing away too quickly from the liberal agendas of the last sixty years.

I might join the EFF, and maybe even the ACLU, but I doubt I will EVER join a political party or limit my voting to party lines....
5.17.2009 1:01am
jukeboxgrad (mail):
dave n:

I have no idea why you linked to my first post instead of, say, the CAT itself or actual federal law


I have no idea why you're making bogus claims about what I did or didn't link. Let's review. Please see my post at 4:36 pm. It contains the following passage:

Except that CAT specifically requires us to investigate and prosecute "wherever there is reasonable ground to believe that an act of torture has been committed."


Do you notice the link to CAT? I guess you didn't notice it before. Because at 4:59, you said this:

If you would provide me with specific language in the CAT that mandates prosecution, I would be interested in seeing it.


I had already provided "specific language in the CAT" along with a link to CAT. Was this an instance of cross-posting? The gap was 23 minutes, which I would think would be enough time for you to see my prior post. So at 7:57, I said this:

I already did [provide … specific language in the CAT].


Nowhere in this exchange did I link to your "first post." However, I did link to CAT twice, first directly, and then indirectly.

I figure you know how to link so I will ascribe the worst possible motive to this error


The "error" is obviously all yours, so let us know what "motive" we should ascribe to it.

as you know, that is your favorite tactic


As you know, you are making an accusation without offering a pretense of proof to back it up. It would be nice if you could show an example where I have done what you claim (i.e., unreasonably assume "the worst possible motive").

there is no mandatory language


Actually, there is. Above I cited the language which indicates that investigation is mandatory. Here it is again:

Article 12 - Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.


And you cited the language which indicates that prosecution is mandatory:

The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall … submit the case to its competent authorities for the purpose of prosecution


You are correct that it also says this:

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 that if it's our normal "manner" to fail to prosecute ordinary offenses "of a serious nature," then it's OK for us to ignore this one, too. So is it our normal practice to fail to prosecute ordinary offenses "of a serious nature?" Even after the case has been submitted to "competent authorities for the purpose of prosecution?" Even after an investigation found "reasonable ground to believe" that an offense "of a serious nature" had been committed? Really? I had no idea. Maybe you can offer an example.

A much more detailed discussion of this issue is here. It includes a relevant statement by "John Bellinger, the Legal Adviser to the Bush State Department."

There is also some helpful information here, especially in the update.

There was also an interesting discussion of this issue here, but the comments got lost (I know that at one time there were comments attached to that post).

I also refer you to the statement Reagan made when he announced the US ratification of the treaty:

Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution


I think his word "required" is quite unambiguous. But maybe he meant to say 'required, but only if we feel like it.'

18 U.S.C. § 1740A


"1740?" What's "1740?" I thought the correct number is 2340A.

18 U.S.C. § 2740A


Getting closer. Now only one digit is wrong.
5.17.2009 1:05am
jukeboxgrad (mail):
sg:

the people with no credibility are the people who complained about Republican deficits but don't complain about Obama's deficits, i.e., you


It might have something to do with my preference for building this nation rather than someone else's. I also realize that cleaning up the mess created by 28 years of Reaganomics is not going to be cheap.

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

even uncorrected for inflation it didn't triple


I don't know who "brillig.com" is (and I don't know where his inflation assumptions are coming from). I prefer to get my data from treasurydirect.gov, which is an official site of the Department of the Treasury.

Reagan took office on 1/20/81. As of 9/30/80, the national debt was $907,701,000,000.00. Reagan left office on 1/20/89. As of 9/30/88, the national debt was $2,602,337,712,041.16. That second number is 2.9 times greater than the first number, which in my opinion is close enough to "triple."

in eight years in office, Reagan added $2 trillion to the debt. By contrast, Obama has already budgeted $3 trillion in new debt for just the next two years


Weren't you the one who was just making a fuss about the importance of inflation? Why are you comparing old dollars to new dollars without adjusting for inflation? Or without adjusting for population, or for the size of the economy?
5.17.2009 1:05am
jukeboxgrad (mail):
moore:

Drowning involves inhaling water instead of air, which does not happen in water-boarding.


You have a remarkable willingness to brazenly post the same false claims over and over again, without making even a pretense of addressing the evidence that's been presented which proves that your claim is false (link, link).

Nobody is going to die due to lack of oxygen after 40 seconds.


You are implying that we had a limit of "40 seconds," even though we didn't. A 2002 memo mentioned that number, along with various other guidelines, but the 2005 memos indicate that the 2002 guidelines were exceeded.

It would seem the statute was written to be malleable


The statute is not "malleable" enough to explain how the same procedure is torture when the Japanese do it, but not when we do it.

====================
einhverfr:

It would seem to my mind that even the most mild forms of waterboarding fit this definition.


In my opinion, it's especially important to notice that when the Japanese did waterboarding the way we did it, we called it torture and we prosecuted them.

I would argue that a sense of impending death by drowning is, in fact, severe mental pain by any definition.


Indeed. And the Torture Act specifically outlaws "the threat that another person will imminently be subjected to death." Asphyxiation leads to death for 100% of humans, after a fairly short interval. Therefore asphyxiation definitely imposes "the threat" of imminent death.

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

Clearly the administration was looking to go up to the line and, given that the line isn't a bright one, I can respect those who think they crossed it. But they did draw a line.


One of many things you fail to understand is the Bybee memo of 2002 drew certain lines, and then the CIA went ahead and crossed those lines. Even though the lines themselves were a description of torture.

And the line was indeed "a bright one" with regard to waterboarding. 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 (pdf). Claiming that waterboarding is not torture is a Bush administration innovation.

I read the memos as a good faith effort to try to define what was permissible


Please explain how a "good faith" legal analysis of waterboarding could fail to mention that there is a history of US courts treating waterboarding as a form of torture.

I just don't find anything done as SOP during training, or something that journalists will volunteer to undergo, as torture.


The procedure "done as SOP during training" is not the same procedure used by CIA.

remember that this was directly in the shadow of 9/11.


The torture enablers at OLC were still writing bogus torture memos in 2005. That was "directly in the shadow of 9/11?"

And to the extent that torture was done "directly in the shadow of 9/11," the court should give that factor proper consideration.
5.17.2009 1:06am
John Moore (mail) (www):
einhverfr

John Moore:

I would argue that a sense of impending death by drowning is, in fact, severe mental pain by any definition.

Like I said, it's arguable, not established fact. I would suggest that knowing that you weren't really going to die, because people were obviously trying to get info from you, would ameliorate that fear.

Alec

John,

My specific objection is to your description of it as something akin to holding one's breath for an uncomfortably long period of time.

I didn't equate waterboarding to holding one's breath. I described only the physiological effect, not the far more significant psychological phenomena (or any physiological consequences of that).

And I still do not consider it to be torture, which is why I put out my description of torture up-thread.
5.17.2009 1:18am
Desiderius:
Markfield,

"I'm aware of the fact that moral absolutes create significant logical problems"

Logic is the least of the problems.
5.17.2009 1:21am
jukeboxgrad (mail):
moore:

knowing that you weren't really going to die, because people were obviously trying to get info from you


After you've been waterboarded, say, 100 times, and you've already dreamed up all the false confessions you can possibly imagine, and you find that they still want to do it again, it would be reasonable to suppose that this time they actually intend to kill you. It would also be reasonable to suppose that they're really just doing it for fun or punishment, and they don't care that much about whether or not you live or die.

And even if you truly believed that they truly wanted to keep you alive, it would be irrational to be overly confident about their ability to do this in a reliable manner. Accidents can happen, especially if someone is being repeatedly brought to the "verge of death and back again."

Given the number of prisoners who we tortured to death, these would he reasonable assessments on the part of the prisoner.

I also wonder why we didn't invoke the "people were obviously trying to get info from you" principle when the Japanese did this to us.

I didn't equate waterboarding to holding one's breath.


Then it must be a different John Moore who said this:

Physiologically, it is more like holding your breath for an uncomfortable period of time.
5.17.2009 1:39am
John Moore (mail) (www):
I keep hearing this mosquito-like whining.. JBG must be in the vicinity. Good thing I have this blocking software ;-)
5.17.2009 1:43am
Dave N (mail):
Jukebox,

You are an absolute idiot when it comes to criminal law. THere is NO mandatory language. I am guessing you look down on prosecutors and don't consider it real law or something.

A prosecutor has no obligation to prosecute absent a specific statute that limits a prosecutor's discretion. You either don't understand that point (which means you are talking out of your anal orifice or you are dissembling).

You are too dumb to even realize the CAT is not self-executing. If you look, it actually has provisions that say so.

Yes, I had a couple of typos. But it doesn't change the fact that the correct statute 18 U.S.C. 2340A is not mandatory either.

I am a prosecutor and have spent my career as such. You are one of those people who thinks criminal law is just like TV.

You are wrong, flat wrong on the important issue. I am guessing Eugene will agree with this if he reads my analysis in contrast with your blithering stupidity when it comes to criminal law.

Oh, and one final, your sneers over minor typographical errors proves my point from last night: You are an ass.
5.17.2009 2:06am
Guest12345:


I don't know who "brillig.com" is (and I don't know where his inflation assumptions are coming from). I prefer to get my data from treasurydirect.gov, which is an official site of the Department of the Treasury.


Can't help your inability to spend thirty seconds to figure out where they get their numbers from. You might want to start here. And there is no need to make assumptions about historical inflation rates, that information is known.


Reagan took office on 1/20/81. As of 9/30/80, the national debt was $907,701,000,000.00. Reagan left office on 1/20/89. As of 9/30/88, the national debt was $2,602,337,712,041.16. That second number is 2.9 times greater than the first number, which in my opinion is close enough to "triple."


In addition to not actually having a clue how to intelligently compare two numbers, you're saying that you don't bother to find data that lines up with Reagan's term and budgets. Anyway if you want to draw the line at 9/30 of the year prior to the president taking office, then feel free to take the $700 billion TARP program from Bush's total and give that to Obama. Which puts Obama's increase, through his first hundred days in office, ahead of Reagan's entire eight years.


Weren't you the one who was just making a fuss about the importance of inflation? Why are you comparing old dollars to new dollars without adjusting for inflation? Or without adjusting for population, or for the size of the economy?


As a percentage of GDP, when Reagan left office the debt was a little over 50%. Today it's 80%. That $1.5 trillion in new debt that Obama has already spent? That's 10% of the GDP.

The only way you'll ever be able to make Obama's deficits and addition to the debt compare favorably with any previous president is if you make up some bizarro method of comparison. Since you are you, I know that you will continue to do just that, so here are a couple of suggestions for you:

1) Debt / Vapors. You can calculate this metric by dividing the debt by the number of times a menopausal columnist writes how Obama makes her feel funny inside. Given how much the media hated Bush, Obama should look pretty good here.

2) Debt / HISTORIC! As Obama frequently tells us, the Obama presidency is HISTORIC! You calculate this metric by counting up all the HISTORIC! events, such as the HISTORIC! first African-American president being sworn into office, the HISTORIC! first African-American president to take a dump in the White House, the HISTORIC! first African-American president to break a campaign promise while less than ten days in office, or the HISTORIC! first African-American to put a cigarette burn in the Resolute desk.. Then divide the debt by that count. Obama will totally clean up on this one.
5.17.2009 2:25am
Dave N (mail):
Jukebox,

I will use little words this time. A prosecutor DOES NOT just prosecute a case because the investigating authority submits it to him or her. In fact, in the United States the prosecuting authority and the police authorities are separate and distinct for a reason, though that is not true in other countries.

What this means--and yes it happens at times even for major crimes--a prosecutor can take a look at a case presented to him or her and say, "Nope, we aren't going to prosecute." That is that prosecutor's absolute decision and anyone disagreeing with the prosecutor (people outside his or her chain-of-command) can basically pound sand.

Some of this has to do with a prosecutor's ethical duty--which is to seek justice. Additionally, just because there is probable cause to charge a crime, a prosecutor should not ethically take a case to trial if he or she personally has a reasonable doubt about the defendant's guilt.

That you don't like or undstand is not my problem--it is the nature of prosecutorial discretion, which has been my point and one that you have obtusely not understood.
5.17.2009 2:28am
RPT (mail):
The debate continues here, but the factual revelations from the people who were involved continue. The torture (or "EIT") was not to learn information about or to prevent about "new attacks", but rather to manufacture false confessions and "evidence" of SH-AQ connections to support the war. It had nothing to do with "keeping the country safe", which is why, among other reasons, that it stopped in 2004. The torture apologists (none of whom were actual field professionals), in including the APA contractors, cared more for the challenge of the interrogation experiments (KUBARK) and the success of the 2004 political campaign than about protecting the country.
5.17.2009 2:46am
jukeboxgrad (mail):
moore:

I keep hearing this mosquito-like whining.. JBG must be in the vicinity. Good thing I have this blocking software


If you're pretending to not notice me, it would probably be better if you didn't announce that you're noticing me.

===============
dave n:

THere is NO mandatory language.


I guess that's why Reagan said "each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution." What a shame that he ratified the treaty without understanding it as well as you do.

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

Can't help your inability to spend thirty seconds to figure out where they get their numbers from.


I see no need why I need to get Department of the Treasury numbers from brillig.com when I can get Department of the Treasury numbers directly from the Department of the Treasury.

In addition to not actually having a clue how to intelligently compare two numbers


The ratio between the two numbers is indeed 2.9. Let us know if you're aware of a method to compare them more "intelligently." But thank goodness you're here to warn everyone that I treated the numbers 2.9 and 3 ("triple") as interchangeable. The horror!

you're saying that you don't bother to find data that lines up with Reagan's term and budgets


If you happen to know what the national debt was on 1/20/81 and 1/20/89, please share the information with us. Unless you think it's something you can't "bother to find." Then again, it might be the case that the data is simply not readily available.

Anyway if you want to draw the line at 9/30 of the year prior to the president taking office, then feel free to take the $700 billion TARP program from Bush's total and give that to Obama. Which puts Obama's increase, through his first hundred days in office, ahead of Reagan's entire eight years.


Wrong. According to the Department of the Treasury, the national debt on 9/30/08 was $10,024,724,896,912.49. On 4/30/09 (Obama's 100th day) it was $11,238,592,141,958.64. The difference is about $1.2 trillion. That's much less than "Reagan's entire eight years." Even without adjusting for inflation. And weren't you making a fuss about how important it is to adjust for inflation?
5.17.2009 3:42am
Prawo Jazdy:
Dave N: Please stop feeding the troll. It is getting really tedious having to scroll past vast numbers of sprawling spam to get to posts worth reading.
5.17.2009 7:41am
RPT (mail):
PJ:

Yes, no reason to have to discuss the facts.
5.17.2009 9:50am
jukeboxgrad (mail):
De gustibus non est disputandum.

posts worth reading


I guess you must mean a post like yours, which makes no pretense of adding anything factual or substantive.
5.17.2009 9:52am
Dave N (mail):
JBG,

Your repetition of the same talking points over and over does not make it true.
5.17.2009 10:20am
MarkField (mail):

Nor do I for a second believe that most of the same people complaining about "torture" now would not be complaining even more loudly had we been attacked again while holding a prisoner who had information that could have thwarted the attack and we had a self-imposed restriction to Geneva CA3.


This is pretty dubious speculation about others' motives. After all, most of the provisions of our Bill of Rights have exactly this consequence, yet some of us defend them nevertheless.


Logic is the least of the problems.


Probably so.
5.17.2009 10:27am
Moneyrunner43 (www):
JAO,

You? Independent? Really? You certainly had me fooled.

But why should John McCain’s objections to moving Jihadists from Gitmo to the US bother Team Obama? He has the votes, he has the mandate, he won the election, he has the moral high ground, and he has better than a 60% approval rating. Why should he care what an old guy who ran a piss poor campaign says? After all, he has “independents” like you: free thinkers, speakers of truth to power, students of the law, opponents of waterboarding, apologizers for America BO (Before Obama) on his side. And he also has a really great teleprompter.
5.17.2009 11:28am
Oren:


Drowning involves inhaling water instead of air, which does not happen in water-boarding. Obviously, the physiological effects of filling your lungs with water is different from waterboarding.

The actual sensation of drowning is caused by CO2 accumulation in the lungs, which turns in to carbonic acid (CO2 + H2O ⇌ H2CO3) and actually starts burning the soft tissue inside.

The only relevance of "water" to drowning" is that it's preventing the CO2 from being exhaled. We could just as well "waterboard" someone by placing them in a room of 100% CO2 (note, this is not the same as asphyxiation, in which we could fill the room with Argon).
5.17.2009 11:28am
Moneyrunner43 (www):
Dave N

I tried to read JBG for a very short time but found it a time waster. Now when I see his name at the top I scroll right by, and if I happen to start from the bottom and I run across a really long screed with lots of quotes and tons of white space I know who it is and scroll faster. He’s an electronic pollution virus. Ignore it.
5.17.2009 11:35am
Moneyrunner43 (www):
Victor Davis Hanson has a great spoof President Palin’s First 100 Days.
It a funny and fascinating illustration of how the Left manages to demonize everything the Conservatives do but when Liberals do the same thing it's just great.

What does that have to do with this thread? If you have to ask, you don't have a clue. Intellectual honesty is not much admired on the Left.
5.17.2009 11:41am
davod (mail):
Of course the hypocritical aspect of this is Obama reserves the right to approve enhanced interrogations.
5.17.2009 11:44am
Connecticut Lawyer (mail):
The most important part of Obama's new, revised policy is that he now agrees that enemy combatants can be held without trial of any kind (except for some de minimis procedure to ensure that they are actually combatants and not innocent shepards) for the duration of the conflict. This affects a much larger portion of the detainee population than the decision to try a handful of detainees for war crimes in military commissions rather than federal district courts.

Oh, and jukeboxgrad - if there are any foreign countries out there who think we are not complying with our obligations under the Geneva Conventions or any other treaties, well, they are free to pursue whatever diplomatic remedies they wish. They can send stern notes, or recall their ambassadors, whatever. If they start arresting former United States Government officials and trying them for their conduct while in office, however, they may find themselves on the receiving end of a stern note or maybe (God willing) an aircraft carrier.
5.17.2009 12:28pm
Soronel Haetir (mail):

The most important part of Obama's new, revised policy is that he now agrees that enemy combatants can be held without trial of any kind (except for some
de minimis procedure


The problem here is that the courts have disagreed. It will be interesting to see what the admin does when SCOTUS gets around to saying "Yes, we really meant that release can be forced as a remedy."

I can actually envision an admin ignoring such a ruling, dangerous as that would be to the republic. Have there been any such cases since Jackson?
5.17.2009 1:02pm
ArthurKirkland:
One would have thought the arrogance associated with smug references to "aircraft carrier" diplomacy would have been attenuated by the discredited record of seven years -- attacking the wrong country, kidnapping innocents, maintaining secret prisons, torturing captives, abusing prisoners, failing to capture or kill bin Laden, botching an attempted occupation, long-term ineptitude in Afghanistan, unlawful detention at Guantanamo, squandered allies -- but it appears that the arrogance endures . . . at least in scattered pockets along the fringe.

I favor providing to the Obama administration an opportunity to correct our national course by changing policies; disclosing (at a calculated pace) information about its predecessors' conduct; identifying, discrediting and/or punishing (at its discretion) those who failed or offended; and arranging corrective legislation to prevent recurrence. I believe most Americans agree, and that the support will increase as the failures and misconduct are revealed over time.

I believe it will be a long time before fans of torture, endless detention without charge or trial, ideologically driven and preemptive invasions, physical abuse of shackled prisoners, secret prisons, outsourced brutality and the like will approve of the conduct of the United States of America. Thank goodness.
5.17.2009 1:25pm
jukeboxgrad (mail):
dave n:

Your repetition of the same talking points over and over does not make it true.


Your repetition of the same talking points over and over does not make it true.

Feel free to explain why Reagan said this:

Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution


Why should we believe that you understand the treaty better than the president who ratified it? You realize he was known as "The Great Communicator," right? And we've seen lots of proof. So surely you're not claiming he stated an outright falsehood, right?

I'm also waiting for you to apologize for making weird claims about my alleged failure to provide a link that I had already provided.
5.17.2009 1:32pm
jukeboxgrad (mail):
money:

an electronic pollution virus.


That's a good word for someone who posts phony quotes and then ducks when challenged. But you and dave n will get along fine, since his approach to quoting is similar to yours.

fascinating illustration of how the Left manages to demonize everything the Conservatives do but when Liberals do the same thing it's just great


Unlike the 'conservatives' who responded to Obama's deficit spending and Bush's deficit spending in a consistent manner, by holding lots of tea party protests in both instances. Oh, wait …

Bruce Bartlett does a nice job of explaining this:

I strongly suspect that many of those that loudly denounced the Obama stimulus package for its impact on the deficit would have cheered the McCain stimulus package even though it would have increased the deficit by about the same amount.

Proof of this proposition is that there were no tea parties during the years when George W. Bush was turning the surpluses of the Clinton years into massive deficits. Indeed, if concerns about deficits are the primary motivation for this week's tax protests, then these same people should have been holding demonstrations of support for Bill Clinton in 2000 when the federal government ran a budget surplus of 2.4% of the gross domestic product--equivalent to a surplus of $336 billion this year.

The truth is that the greatest addition to national indebtedness occurred in 2003 when Bush rammed through the Republican Congress a massive expansion of Medicare to provide drug benefits even though the system was already broke. According to the latest report from Medicare's trustees, the drug benefit added $7.9 trillion to the nation's indebtedness. This should have led to massive tax protests on April 15, 2004. But, of course, there weren't any. Those protesting this week were only protesting because it is a Democrat who has increased the deficit. When a Republican did worse, it's like Emily Litella used to say, "Never mind."

Of course, people are free to protest whatever they want whenever they want, and are also free to change their minds. Maybe this week's tax protesters would have been out protesting even if McCain were president, but I don't think so. I believe this was largely a partisan exercise designed to improve the fortunes of the Republican Party, not an expression of genuine concern about taxes or our nation's fiscal future.

People should remember that while they have the right to their opinion, they are not entitled to be taken seriously. That only comes from having credibility gained by the correct presentation of facts and analysis and a willingness to be even-handed--criticizing one's own side when it is wrong and not only speaking up when the other party does the same thing.
5.17.2009 1:32pm
jukeboxgrad (mail):
davod:

Of course the hypocritical aspect of this is Obama reserves the right to approve enhanced interrogations.


When you find any reason to believe that Obama is torturing anyone, you should let us know. Until then, I suggest you crawl back under the same rock you hid under after I proved that you're a brazen bullshitter (link, link).

================
cl:

If they start arresting former United States Government officials and trying them for their conduct while in office, however, they may find themselves on the receiving end of a stern note or maybe (God willing) an aircraft carrier.


Notwithstanding your fantasies about aircraft carriers, I think Bybee et al are going to think twice before they plan vacations outside the US. I'm not sure they're confident that Major Codpiece can be counted on to swoop in and rescue them.
5.17.2009 1:32pm
einhverfr (mail) (www):
John Moore:

Like I said, it's arguable, not established fact. I would suggest that knowing that you weren't really going to die, because people were obviously trying to get info from you, would ameliorate that fear.


Fine. Let the court decide and elucidate a line.
5.17.2009 1:43pm
John Moore (mail) (www):
Oren


The actual sensation of drowning is caused by CO2 accumulation in the lungs, which turns in to carbonic acid (CO2 + H2O ⇌ H2CO3) and actually starts burning the soft tissue inside.

The only relevance of "water" to drowning" is that it's preventing the CO2 from being exhaled. We could just as well "waterboard" someone by placing them in a room of 100% CO2 (note, this is not the same as asphyxiation, in which we could fill the room with Argon).


This is only partially true. CO2 accumulation indeed is what causes the panic, as the body doesn't detect O2 defecit (I went through a hypoxia training exercise in a high altitude chamber - the lack of blood oxygen led to unconsciousness without any panic and hardly any symptoms one could notice). You can achieve the same effect by attempting to hold your breath for a long time - that urge to breathe, which becomes overwhelming, is a result of the CO2 buildup. If you have ever pushed yourself in underwater swimming, you know this feeling well.

A room full of CO2 would induce panic. A room full of argon would produce peaceful death (as sometimes happens, most often with nitrogen).

However, when water enters the lungs, it has dramatic physiological effects. It alters blood chemistry (see below) and can also damage the lung tissue leading to "secondary drowning" where a victim recovers and then hours later dies (this is similar to the reaction to inhaling hot gases).

Hence the statement holds: waterboarding is not drowning stopped before death - it is a distinct phenomenon.

From here:

When water enters the lungs the victim's blood chemistry is rapidly altered, often leading to heart failure. In fresh water drownings inhaled water is immediately absorbed into the blood causing hemodilution. The diluted blood quickly leads to heart failure due to ventricular fibrillation, a condition simply described as shivering of the heart, or anoxia (oxygen starvation). Sea or salt water creates the opposite effect. Water is drawn from the blood into the lungs. This process causes the blood to become more concentrated, leading to an increased load on the heart and heart failure. Older drowning victims may experience immediate heart failure as a result of the initial trauma of drowning, particularly in extremely cold water.
5.17.2009 2:25pm
John Moore (mail) (www):

Fine. Let the court decide and elucidate a line.

The problem with this is that it normally happens after the questioned action, and can result in severe penalties if the court disagrees with the accused.

Far better to create a more clear law.
5.17.2009 2:27pm
ArthurKirkland:

The problem with this is that it normally happens after the questioned action, and can result in severe penalties if the court disagrees with the accused.


That's not a problem. It's a solution.
5.17.2009 3:54pm
John Moore (mail) (www):
ArthurKirkland:



The problem with this is that it normally happens after the questioned action, and can result in severe penalties if the court disagrees with the accused.

That's not a problem. It's a solution.

Not if you're the one charged with protecting the nation.
5.17.2009 4:15pm
Guest12345:

The ratio between the two numbers is indeed 2.9. Let us know if you're aware of a method to compare them more "intelligently." But thank goodness you're here to warn everyone that I treated the numbers 2.9 and 3 ("triple") as interchangeable. The horror!


Are you truly that... lacking in mental faculty? I'm not talking about your pseudo Reagan debt increase. I'm talking about your meaningless blather that one president increased the debt by three times, another by two times like the numbers two and three matter.

Here is a question for you to answer to illustrate your complete failure at intelligent discussion:

Do you want to owe 5 * X, or do you want to owe 2 * Y?

Anyone with a smattering of brain power will point out that the values of X and Y matter. In your Tourette-like outburst attempting to hide the insane debt increase Obama is engaging in, you attempted to argue that the multiplier is relevant. I'm not talking about 2.9 or 3. I'm talking, using your wrong numbers, about $2 trillion over eight years v. $1.2 trillion over six months.

Grow up, get a clue and act with some integrity.
5.17.2009 4:39pm
Anon1111:
JBG - you are using debt numbers that include intragovernmental debt, which isn't a good metric. It's like saying that my family is in debt because I owe my wife $1 million. Financial statements the world over back-out intracompany transactions, and for good reason, because there is an offsetting asset that cancels out the debt directly. If you arguments are going to be taken seriously, you need to remake them taking that out of the equation.
5.17.2009 4:59pm
Bad English:
"You are an absolute idiot when it comes to criminal law."


The problem is quite a bit more far-reaching than that. But then again, he admits that the closest he came to getting a degree is from a jukebox.
5.17.2009 5:20pm
RPT (mail):
I'm still curious if the analysis of the torture supporters is changed by the disclosure that it was done to "discover" [fabricate"]evidence of WMD or an SH-AQ connection to support the war. This is key because it removes JM's argument that torture was used to "protect the nation".
5.17.2009 6:00pm
M N Ralph:


moore:

I keep hearing this mosquito-like whining.. JBG must be in the vicinity. Good thing I have this blocking software

If you're pretending to not notice me, it would probably be better if you didn't announce that you're noticing me.


LMAO
5.17.2009 6:07pm
Dave N (mail):
Jukebox wrote,
Feel free to explain why Reagan said this:
Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution
Since you are a walking Kos Talking Point, it must gall you to have to quote from Ronald Reagan as your primary source--though I thought the leftwing version of his Presidency was that he was an amiable dunce and an awful President.

Yet now, you are saying, "Ronald Reagan said it so it must be true."

And my response, "No, you are wrong."

Three actual thoughts (as to your mindless chant of "Reagan said so").

1) Reagan's statement has a context, which I know is your weakpoint. The context was people from other countries. Read these words real slowly: Torturers are found in its territory or extradite them to other countries.

The context (hard for you, I understand) would be people who committed torture in other countries who fled into the United States and the Congressional Research Office has noted that American citizens were excluded. Additionally American citizens are extraditable to other countries only if the Secretary of State agrees (note the permissive "may" as opposed to the mandatory "shall" is in the statute).
28 U.S.C. § 2340A (I will say this because you might rightly point out that 28 U.S.C. § 2340A, which codifies the CAT, was not amended until 1994) to make Conspiracy a crime. This is significant because Section c is the enabling legislation for CAT.

2. President Reagan also said this, which I think you know--and in language drafted by lawyers at the State Department:
In view of the large number of States concerned, it was not possible to negotiate a treaty that was acceptable to the United States in all respects. Accordingly, certain reservations, understandings, and declarations have been drafted, which are discussed in the report of the Department of State. With the inclusion of these reservations, understandings, and declarations, I believe there are no constitutional or other legal obstacles to United States ratification, The recommended legislation necessary to implement the Convention will be submitted to the Congress separately.
What were those reservations? I know you don't care because context is irrelevant to talking points,but those who think you may know what you are talking about might be interested.

The reservations are extensive, and can be found here.

3. President Reagan was not an attorney and his statements are just that, statements. They do not have the force of law--which is a self-evident point. I suspect you violently disagree with President Bush's actions regarding enhanced interrogation. If President Reagan spoke authoritatively about CAT, why can't President Bush speak authoritatively about whether "enhanced interrogation techniques" are actually torture?

Finally, I looked back and slightly misspoke. You linked back to your initial response to me as if THAT somehow provided context when I asked for it. It did not. It was, instead, your very unsubtle way of saying "Gee, I can just repeat myself because that automatically proves my point."

Bottom line, I will not apologize to you about anything until you apologize for being an ass on mulitple occasions.
5.17.2009 7:19pm
John Moore (mail) (www):

I'm still curious if the analysis of the torture supporters is changed by the disclosure that it was done to "discover" [fabricate"]evidence of WMD or an SH-AQ connection to support the war. This is key because it removes JM's argument that torture was used to "protect the nation".

Proof? I read that a detainee claimed that. I haven't followed that point so closely.

However, if that was the purpose of the interrogation, then it is obviously a criminal offense. If the interrogators had reason to belief that the tie was true, and that the interrogatee was hiding them, then no problem - information about such a tie was obviously of significant import to the security of the United States, irregardless of its usefulness in helping justify the Iraq War.
5.17.2009 7:34pm
Dave N (mail):
Jukebox,

I also noticed this, which calls into your understanding of the the Treaty Clause, when you rhetorically asked:
Why should we believe that you understand the treaty better than the president who ratified it?
Since Article II, Section 2 gives the President the authority to make treaties but makes that treaty contingent on 2/3 of the Senate ratifying the treaty, you obviously don't have much grounding in the Constitution.

I would also note that CAT was not formally ratified by the Senate until 1994. I believe the President that year was some guy named Clinton and not some guy named Reagan.

Normally, I would think your claim about the President ratifying treaties to the thought being correct and the wrong word being written. But since you don't give that courtesy to others, damned if I will give it to you.
5.17.2009 7:40pm
Dave N (mail):
Guest 12345,

Please apologize to those who suffer from Tourettes. You insult them by using "Tourette-like" when discussing JBG.
5.17.2009 8:08pm
SG:
However, if that was the purpose of the interrogation, then it is obviously a criminal offense. If the interrogators had reason to belief that the tie was true, and that the interrogatee was hiding them, then no problem - information about such a tie was obviously of significant import to the security of the United States, irregardless of its usefulness in helping justify the Iraq War.


You know, opponents of coercive interrogation have repeatedly claimed that coercion is counter-productive because the interrogee will simply tell the interrogator what they want to hear, irrespective of the truth value.

But if we accept the claim (and this is the first I've heard of it - it's certainly plausible but I have no independent confirmation of it), then we have an existence proof that coercion does not inherently and inevitably lead to the interrogator only getting what they want to hear irrespective of the truth. Does this disproof of the claimed weakness of coercion cause opponents of coercion to rethink their opposition?
5.17.2009 8:18pm
Duracomm (mail):
Juke,

Your statement in block quotes applies to obama and his fanbase. In an even worse way.
Unlike the 'conservatives' who responded to Obama's deficit spending and Bush's deficit spending in a consistent manner, by holding lots of tea party protests in both instances. Oh, wait …

Obama and his fanbase railed against bush's deficits. Obama promised to change this sorry state of affairs.

Obama gets in office and embarks on a deficit spending binge so large it makes bush's spending look like Ebeneezer Scrooge's. Predicatbly obama's fanbase defends his reckless spending and cheers it on.

I was told mccain was going to be bush's third term. Looks like obama is going to be bush's third term.

Without bush's fiscal responsibility

The $1.8 Trillion Deficit

$600 billion has already been added during his four-month presidency (an amount that, by itself, would exceed all 2001-07 annual budget deficits).

And should the president really be allowed to distance himself from the $1.2 trillion "inherited" portion of the deficit, given that as a senator he supported nearly all policies and bailouts that created it?

or diplomatic finesse.

DVD region code blocks British Prime Minister from enjoying Obama's gift

This was not the "change we can believe in" I knew :-)
5.17.2009 8:21pm
PC:
But if we accept the claim (and this is the first I've heard of it - it's certainly plausible but I have no independent confirmation of it), then we have an existence proof that coercion does not inherently and inevitably lead to the interrogator only getting what they want to hear irrespective of the truth. Does this disproof of the claimed weakness of coercion cause opponents of coercion to rethink their opposition?

How far back in history do you want to go? Torture works quite well if you already know the answer to the question you are asking. Is she a witch? Torture will get her to admit it. Is he a capitalist sympathizer working against the Revolution? Torture will get him to sign a confession. Is this US soldier guilty of war crimes? Torture him enough and he will sign whatever you put in front of him.

You also have to look back at where our torture program came from. The techniques used at SERE were based on what the Koreans and Chinese did to captured American soldiers to elicit false confessions. Fifty years later we employed those same techniques to elicit truthful confessions? Interesting in a mental disconnect sort of way.
5.17.2009 9:18pm
John Moore (mail) (www):
<blockquote>
Torture works quite well if you already know the answer to the question you are asking.
</blockquote>
Once again, the old canard... torture only works to produce pre-planned results, not information.

Tendentious nonsense.
5.17.2009 9:46pm
whiskey sierra two niner:
Major Burney testified that interrogations “focused on trying to establish a link between Al Qaeda and Iraq.”

Senate Armed Services Committee report Inquiry Into the Treatment Of Detainees In U.S. Custody, p.41 (p.72 in PDF):
(U) At the time, there was a view by some at GTMO that interrogation operations had not yielded the anticipated intelligence.290 MAJ Burney testified to the Army IG regarding interrogations:

[T]his is my opinion, even though they were giving information and some of it was useful, while we were there a large part of the time we were focused on trying to establish a link between Al Qaeda and Iraq. The more frustrated people got in not being able to establish this link ... there was more and more pressure to resort to measures that might produce more immediate results.291


[Redacted] The GTMO Interrogation Control Element (ICE) Chief, David Becker, told the Committee that, at one point, interrogation personnel were required to question [redacted] but that he was unaware of the source of that requirement.292 Others involved in JTF-170 interrogation operations agreed that there was pressure on interrogation personnel to produce intelligence, but did not recall pressure to identify links between Iraq and al Qaeda.293

—————————

290 Army IG, Interview of MAJ Paul Burney (April 28, 2006) at 6; Committee staff interview of [redacted] (September 12, 2007).

291 Army IG, Interview of MAJ Paul Burney (April 28, 2006) at 6

292 The ICE Chief told the Committee that interrogators identified only “ a couple of nebulous links.” Committee staff interview of David Becker (September 17, 20070.

293 Committee staff interview of LTC Jerald Phifer (June 27, 2007); Committee staff interview of [redacted] (September 12, 2007).


However, “others involved in JTF-170 interrogation operations [...] did not recall pressure to identify links between Iraq and al Qaeda.”
5.17.2009 10:10pm
jukeboxgrad (mail):
moore:

waterboarding is not drowning stopped before death


You insist on repeating your claim that water doesn't enter the lungs even though there is ample reason to understand that water enters the lungs (link, link). Maybe it has something to do with the fact that you are utterly shameless about making false claims (link, link).

Fine. Let the court decide and elucidate a line.


The problem with this is that it normally happens after the questioned action, and can result in severe penalties if the court disagrees with the accused.


That's a fact of life, and it applies to law in general, and especially to criminal law. And what it means is that if you're not sure your behavior is legal, you better make sure. And if you don't make sure, too bad. Because if you're really not sure, that means you're too close to the line, and getting too close to the line has consequences.

Far better to create a more clear law.


Why don't you tell us what you think the law should say?

Not if you're the one charged with protecting the nation.


If you can't figure out how to do the job of "protecting the nation" without committing war crimes, then you need to find another job.

I read that a detainee claimed that.


There's lots of evidence that torture was used to extract false confessions for the purpose of selling the war, and the evidence doesn't rely on something "a detainee claimed."

If the interrogators had reason to belief that the tie was true


Trouble is, they didn't. CIA already understood that Saddam and AQ weren't working together. But Cheney kept pressing for torture to prove otherwise. Here's an idea: pay attention to the evidence that's emerging.

Once again, the old canard... torture only works to produce pre-planned results, not information. Tendentious nonsense.


Pay no attention to Soufan, who was there. Much better to accept unsubstantiated assertions ("tendentious nonsense") from some guy on the internet who has a long track record of making false claims.
5.17.2009 10:30pm
jukeboxgrad (mail):
guest:

I'm not talking about your pseudo Reagan debt increase.


What is "pseudo" about Reagan's tripling the national debt? Nothing. And I notice you're trying to run away from your prior statement. Let's review. I said this:

Under Reagan the national debt tripled.


You responded as follows:

You back to making stuff up again? In year 2000 dollars Reagan doubled the debt from just under $2 trillion to just under $4 trillion (even uncorrected for inflation it didn't triple.)


(Emphasis added.) Trouble is, the one who is "making stuff up" is obviously you. Because as I demonstrated here, Reagan did indeed triple the national debt. Unless you claim it's not fair to describe an increase of 2.9 times as "triple." Is that your point? You're complaining because I rounded 2.9 to 3? Someone call the wambulance.

I'm not talking about 2.9 or 3.


Maybe you're not talking about that now, but you were talking about it before. You made a specific factual claim: "it didn't triple." When are you going to admit that your claim was false?

I'm talking, using your wrong numbers


Where have you demonstrated that any of my numbers are "wrong?"

$2 trillion over eight years v. $1.2 trillion over six months.


Weren't you making a fuss about inflation a bit earlier? Or was that some other guest12345? Because you seem to have suddenly forgotten that there's been some inflation since the Reagan era.

===================
anon:

you are using debt numbers that include intragovernmental debt, which isn't a good metric.


There are many different ways of talking about the national debt, and this leads to lots of confusion. I think the important thing is to at least be consistent.

There are legitimate arguments pro and con, as far as whether or not to include intragovernmental debt. And there are still tough questions even if you exclude it. For example, even if one does what you suggest (look only at Debt Held by the Public), then there is an issue of domestic vs. foreign. Because presumably debt held by foreigners and (especially) foreign governments should concern us more than debt held by Americans. Because in a way, debt held by Americans is like the example you mentioned ("saying that my family is in debt because I owe my wife $1 million").

Anyway, if you object to including intragovernmental debt, you should take your complaint to adler, because the video he's promoting does precisely that.

If you arguments are going to be taken seriously, you need to remake them taking that out of the equation.


Then you're saying that adler and the video he's promoting shouldn't be taken seriously. And I agree, but for different reasons.
5.17.2009 10:31pm
jukeboxgrad (mail):
dave n

it must gall you to have to quote from Ronald Reagan as your primary source


Of course not. On the contrary. The issue is not what I think of Reagan. The issue is what 'conservatives' think of St. Ronnie. And it's great fun to watch the cognitive dissonance that is evoked when it's pointed out that it was him, not Carter or Clinton, who announced the US intention to ratify CAT. Because there are obviously lots of folks around here who want to disown CAT, but they don't want to disown Reagan.

I thought the leftwing version of his Presidency was that he was an amiable dunce and an awful President.


He was "an amiable dunce and an awful President." But even a stopped clock is right twice a day, and he did the right thing when he promoted CAT. Anyway, the point is that Reagan's failures, contradictions and hypocrisies aren't my problem. They're yours.

Yet now, you are saying, "Ronald Reagan said it so it must be true."


Not quite. I know it's true, without regard to whether or not Reagan said it. So it doesn't really matter to me whether or not Reagan said it. Trouble is, it matters to you. Because you want to disown what he said, but you don't want to disown the person who said it (feel free to explain how you intend to go about doing that). So the one who is in a bind is you, not me.

my response, "No, you are wrong."


An assertion is not argument. And one of the many things you're failing to do is explain how Reagan could be so wrong. Then again, maybe this is your way of letting us know that you agree with my assessment of him: that he was a dunce. Is that your point?

the Congressional Research Office has noted that American citizens were excluded


Really? CAT doesn't apply to American citizens? That's complete nonsense. Where is that documented? CAT is here. The Senate statement of "reservations, understandings and declarations" is here. Reagan's announcement is here. The Torture Act is here. The irrelevant CRS report that you cited is here (pdf). Where do any of these documents indicate "that American citizens were excluded?" You should show us the exact text. Here's where that text can be found: nowhere. Why are you making shit up?

Additionally American citizens are extraditable to other countries only if the Secretary of State agrees


That's a red herring. Who claimed otherwise?

The reservations are extensive, and can be found here.


I think a better source for the reservations is the one I just provided. And you should tell us where the reservations support any of the claims you've been making, or where they contradict what Reagan said. They don't.

President Reagan was not an attorney and his statements are just that, statements.


He was not making an off-the-cuff remark. He was not responding to a question shouted at him by a reporter. He was not being cornered by a fierce Katie Couric. He was delivering a prepared speech, regarding the ratification of a major treaty. That speech wasn't reviewed by his lawyers? Really?

If President Reagan spoke authoritatively about CAT, why can't President Bush speak authoritatively about whether "enhanced interrogation techniques" are actually torture?


Do you really want to make that comparison? Bush has a long track record as a liar. Only a fool takes his statements seriously. If you're claiming that Reagan should be viewed in the same light, feel free. Hearing you say that won't exactly ruin my day.

your claim about the President ratifying treaties


Thanks for this nice example of quibbling over the picayune. Yes, I said "he ratified CAT," when it would have been more correct to say "he made a speech announcing that the US intended to ratify CAT, subject to the advice and consent of the Senate." In my opinion, the former is a reasonable simplification of the latter, for the purpose of a blog post (and my posts are long enough, as it is). You disagree? Too bad. Sue me. The difference in this context is utterly immaterial, because the key point is that Reagan was expressing his personal and official support of the ratification.
5.17.2009 10:31pm
jukeboxgrad (mail):
sg:

proof that coercion does not inherently and inevitably lead to the interrogator only getting what they want to hear


I don't see where you see such "proof." Maybe you could make your point in a different way.

===================
dura:

Obama and his fanbase railed against bush's deficits.


In my opinion, the problem was not necessarily how much Bush was spending, but what he was spending it on. If you can show otherwise, please do so.

$600 billion has already been added during his four-month presidency (an amount that, by itself, would exceed all 2001-07 annual budget deficits)


That statement is written in a confusing manner, and I think it's intentionally misleading. Because it implies that "$600 billion" is an amount that "would exceed all 2001-07 annual budget deficits" combined. And that is not true.

The clear and correct way to write the statement is this: '$600 billion is an amount that, by itself, would exceed each of the annual budget deficits in the period 2001-07.'

===================
pc:

You also have to look back at where our torture program came from. The techniques used at SERE were based on what the Koreans and Chinese did to captured American soldiers to elicit false confessions. Fifty years later we employed those same techniques to elicit truthful confessions? Interesting in a mental disconnect sort of way.


Exactly. As General Irvine said:

… they built the CIA's surreal secret interrogation program around the same brutal coercion that had successfully forced American POWs to lie to their North Korean and Chinese captors. In other words, they assumed that the very brutality which had forced American soldiers to lie would magically force a Muslim terrorist to tell the truth, even if he had to be waterboarded 183 times.


Since false confessions were the goal, it made perfect sense to use torture techniques we imported from China and North Korea.
5.17.2009 10:31pm
M N Ralph:
Time for an independent commission to investigate all the issues around torture. All of the allegations and factual misunderstanding in this thread show the necessity for such a commission. Let the chips fall where they may. Why would anyone oppose it?
5.17.2009 10:43pm
David M. Nieporent (www):
Thanks for this nice example of quibbling over the picayune. Yes, I said "he ratified CAT," when it would have been more correct to say "he made a speech announcing that the US intended to ratify CAT, subject to the advice and consent of the Senate." In my opinion, the former is a reasonable simplification of the latter, for the purpose of a blog post (and my posts are long enough, as it is).
Yes; in your opinion, your false statements are always "reasonable simplifications" or close enough, while anyone else's is "lying" or "misleading." In your opinion, your gotcha attempts are paying attention to what people say and holding them accountable, while other people's are "quibbling over the picayune."
5.17.2009 10:57pm
jukeboxgrad (mail):
nieporent:

in your opinion, your false statements are always "reasonable simplifications" or close enough


No. Sometimes I make false statements as a simple error. And then I correct them, when the error is brought to my attention. Do you need to see examples?

Anyway, feel free to show an example of where I used a reasonable simplification that was not actually a reasonable simplification.

while anyone else's is "lying" or "misleading."


Feel free to show an example of where I accused someone of lying or misleading without showing evidence that they were lying or misleading.

In your opinion, your gotcha attempts are paying attention to what people say and holding them accountable


Feel free to show an example of where I held someone accountable for what they said even though what they said was a reasonable simplification.

And while you're at it, you should clean up some of the false accusations you've been making (link, link).
5.18.2009 12:00am
davod (mail):
Jukie:

Enhanced interrogations.
5.18.2009 12:36am
jukeboxgrad (mail):
This part of the story is heating up, as it should. More and more people are talking about the pressure to produce false confessions:

Liz Cheney Won't Deny Her Father Suggested Questions On Iraq-Qaeda Ties – In an appearance on ABC's This Week today, Liz Cheney employed a classic non-denial denial when asked about a report her father's office pressured interrogators to use torture to find evidence of Iraq-Qaeda links.


And I agree with a commenter there:

I think the Cheney's really deserve a heart-felt thank you from the American people. Their constant presence in the media has played a major part in keeping the torture debate on the front burner. The Obama Administration made it clear that they wanted to move on, but the Cheneys are doing an excellent job of making sure we hold the previous administration accountable for their actions. Keep up the good work!
5.18.2009 12:36am
jukeboxgrad (mail):
Enhanced interrogations.


People who use the euphemism should give credit to the people who originated it.
5.18.2009 12:40am
David M. Nieporent (www):
You insist on repeating your claim that water doesn't enter the lungs even though there is ample reason to understand that water enters the lungs (link,
You've got to love JBG. That "link" is not to a fact, but to a second JBG post. That second JBG post links not to a fact, but to yet a third JBG post. That third JBG post links not to a fact, but to a NYT blog post. That NYT blog post doesn't actually say what JBG wishes it said, so instead he pretends it does and uses mockery about "magic force," not understanding that, in fact, gravity is not a "magic force." But he assumes that nobody will click that far into his series of posts.


No. Sometimes I make false statements as a simple error. And then I correct them, when the error is brought to my attention. Do you need to see examples?
Sometimes you make false statements deliberately hoping nobody will notice, and then claim it is a "simple error" after the fact. Like when you claim a post about grammar is actually a post about Israel. (No, sorry, I forgot: you still haven't admitted that was an error; you pretend it was true.)
Anyway, feel free to show an example of where I used a reasonable simplification that was not actually a reasonable simplification.
You claimed that the Pope had said something when he hadn't. You claimed that Reagan had ratified a treaty when he hadn't. (Of course, you'll just deny that these weren't "reasonable simplifications." See how this works?)
Feel free to show an example of where I held someone accountable for what they said even though what they said was a reasonable simplification.
You claimed that saying someone was quoted, when they were paraphrased, was not a reasonable simplification, even though it was. (Of course, you'll just deny that this was a reasonable simplification. See how this works?)
5.18.2009 1:21am
11-B/2O.B4:
To everyone making wild statements about waterboarding. Stop it. I don't presume to educate y'all about the finer points of legal matters, because I don't have the training. I graduated from SERE school, which is where our current version of waterboarding was developed. I have undergone this procedure multiple times. Whatever you've read is wrong, so stop repeating it. Both sides. The weird part? I'm on the fence about whether it's "torture" or not. It's nasty, really hardcore stuff. But there's no permanent damage, and quite frankly, it's one of the milder techniques used at the school. Even the sleep deprivation was worse. So make your decision, but don't buy the hype.


As an addendum, the capacity I served in was considered to be a high risk for capture, so I've considered the possibility often. Had I a choice between capture by any of the many haji factions, (Al Ansar, Al Quaeda, Tajik Brigade, w/e) and incarceration in Guantanamo, there's no doubt as to which I'd choose. If you want to compare anything the US military does to Al Quaeda, you better back it up with documents, starting with your DD-214.
5.18.2009 3:19am
jukeboxgrad (mail):
11-B/2O.B4:

I graduated from SERE school, which is where our current version of waterboarding was developed. I have undergone this procedure multiple times.


Really? How many times is "multiple times?" 183? 2? Some other number?
5.18.2009 7:16am
jukeboxgrad (mail):
nieporent:

That third JBG post links not to a fact, but to a NYT blog post.


What my posts here, here and here link to (either directly or indirectly) is this. That last link is a page at the NYT site with the following title:

The Caucus - The Politics and Government Blog of The Times


However, what that page mostly contains is not a "blog post." What it contains is "The Methods List for Interrogation," which consists of exact text from the OLC torture memos. And the relevant passage, which I cited here, is this:

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


You are suggesting that this text was written by the NYT. Here's what that makes you: completely full of shit. Because that text was not written by the NYT. That text was written by OLC (which is obviously just conveying information they got from CIA). That text appears in the Bradbury memo of 5/10/05 (pdf; see p. 13 in Adobe Reader). So it is "a fact" that OLC said the words that I have cited. Why have you claimed otherwise?

That NYT blog post doesn't actually say what JBG wishes it said


The text I cited is the exact text from Bradbury, as conveyed via "that NYT blog post." I hope you'll explain what you mean by "doesn't actually say."

so instead he pretends it does and uses mockery about "magic force," not understanding that, in fact, gravity is not a "magic force."


I haven't 'pretended' anything. I cited the exact text that was used by Bradbury. And I don't know why you're talking about "gravity." I haven't said anything about gravity. The direct cause of water in your lungs when you are being waterboarded is not gravity. It's atmospheric pressure. So it's not gravity that is forcing the water into your lungs (except to the extent that atmospheric pressure itself is a consequence of gravity). You seem to be interested in demonstrating that you don't understand either breathing or waterboarding.

But he assumes that nobody will click that far into his series of posts.


On the contrary. Anyone who decides to "click that far into his series of posts" will instantly see that you are a brazen bullshitter. Which seems to be connected to the fact that I included the links, and you didn't.

Like when you claim a post about grammar is actually a post about Israel.


If you care to post a link and cite exact text, that would be helpful. Otherwise, you're just wasting innocent pixels.

You claimed that the Pope had said something when he hadn't.


I said he said something via his surrogates. If you care to post a link and cite exact text, that would be helpful. Otherwise, you're just wasting innocent pixels.

You claimed that Reagan had ratified a treaty when he hadn't.


I already addressed that.

You claimed that saying someone was quoted, when they were paraphrased, was not a reasonable simplification, even though it was.


I know you think it's "pointless" to treat those two words as being different in meaning. You're entitled to your opinion, but I don't share it.

Your latest false accusations are just as specious as your prior ones (link, link).
5.18.2009 8:16am
11-B/2O.B4:

Really? How many times is "multiple times?" 183? 2? Some other number?


Certainly not 183, but what does that matter? Is it less torture in your mind if it is only done once? Ten times? Thought not. My point was not that there is an easy answer to the question. Two perfectly reasonable people can reach opposite conclusions. My point was that all the people writing about what it's like to be waterboarded or encouraging its use on public figures or what have you, should pipe down. People are making some rather ludicrous claims, and so few people have any experience with it that it is prudent for the civilians to quiet their hysteria.

Let me ask a hypothetical question that begins the process here for me. Is the simple infliction of pain and discomfort, without any accompanying physical damage, torture? If your answer is yes, then oppose waterboarding, because it is both painful and discomforting. Just be advised that using a definition like that, in legal terms, opens up a whole new bag of worms.

"Your honor, I was forced to stand in place for hours, which cramped my leg muscles and made me dizzy, I was clearly tortured". Silly? Certainly, and I'm not trying a slippery slope here, this is hypothetical. What is the objective difference between the two? The only difference is the subjective experience of pain, which gets us into philosophical territory. Any nurse can tell you, people's perception of pain varies wildly. So once we remove the requirement of physical damage from the definition of torture, we've placed it squarely in the field of opinion, not objective fact.

Of course, I realize I've addressed this to JBG.....so queue up an out-of-context quote and an extreme position will ya?
5.18.2009 10:07am
jukeboxgrad (mail):
11-B/2O.B4:

Certainly not 183, but what does that matter? Is it less torture in your mind if it is only done once? Ten times?


You said you were waterboarded "multiple times." You didn't just say you were waterboarded. So you must think the number of times matters. Saying "multiple" wasn't my idea. It was yours. So I asked you a direct question: how many times is "multiple?"

You're ducking the question. Why is that?

And to answer your question: yes, torture that is done multiple times is worse than torture that is done once. Duh.

Now that I answered your question, you should answer mine.
5.18.2009 10:16am
David M. Nieporent (www):
You are suggesting that
No, I'm not. It's amazing how the phrase "You are suggesting that..." in the mouth of JBG is invariably followed by a falsehood. It's almost as if the misinterpretations are actually deliberate misrepresentations. (What's really puzzling is that at other times, this same JBG insists on arguing that he just can't possibly respond to what people meant, but only to what they "actually said," where by what they "actually said," he means one particular hyperliteral interpretation of what they said.)

And I don't know why you're talking about "gravity."
Evidently. And yet, oddly, even after admitting you don't understand what I wrote, you went on to write five more sentences in that paragraph as though you did, but in fact showing that you completely misunderstood what I wrote.

So it is "a fact" that OLC said the words that I have cited. Why have you claimed otherwise?
I didn't. What I "claimed otherwise" was that you said that "You insist on repeating your claim that water doesn't enter the lungs even though there is ample reason to understand that water enters the lungs" even though the link -- even filtered through three levels of self-referential posts -- does not in fact say that water enters the lungs.

If you care to post a link and cite exact text, that would be helpful. Otherwise, you're just wasting innocent pixels.
So much for "admitting error" when you're wrong. Puzzlingly, your google skills, which managed to help you find scores of other JBG posts to self-referentially link to, have conveniently failed you here.


Oh, and to respond to just one of your pseudo-rhetorical questions in one of your prior links:
I hope you'll explain how that analogy relates to what's being discussed. If I'm "pointing a gun at him," that's obviously an imminent threat, right? But Bush said the threat wasn't imminent, right? So why did Bush's cheerleaders repeatedly talk about the Bush doctrine of preemption? Why weren't they talking about the Bush doctrine of prevention?
Because people speaking casually often don't make the same sort of precise distinctions they make in writing, say, academic papers. They -- even experts -- use common parlance even when common parlance may not be precise or may obscure real differences. When discussing trademarks casually, I may say that someone "trademarked" something, even though it is misleading and inaccurate, technically, to use trademark as a verb. (Indeed, many times the distinction doesn't matter. Sometimes, it does, however, and so insisting on precision in one place cannot be met with a "gotcha" because one wasn't always precise.) I don't know whether you don't understand this or are just pretending not to.
5.18.2009 10:17am
jukeboxgrad (mail):
nieporent:

What I "claimed otherwise" was that you said that "You insist on repeating your claim that water doesn't enter the lungs even though there is ample reason to understand that water enters the lungs" even though the link -- even filtered through three levels of self-referential posts -- does not in fact say that water enters the lungs.


I didn't claim that OLC explicitly admitted that water enters the lungs. I said OLC gives us "ample reason to understand that water enters the lungs." OLC admitted "that water may enter — and may accumulate in — the detainee’s mouth and nasal cavity, preventing him from breathing." If you have water accumulating in your mouth and nasal cavity, and you are struggling to breathe, please explain the magic force that is going to prevent that water from traveling to your lungs.

So much for "admitting error" when you're wrong.


I will admit error when you show proof that I've made an error. You have made the accusation, and therefore the burden is on you to show proof. On the other hand, what you like to do is make false accusations. And here's some proof (link, link).

Because people speaking casually often don't make the same sort of precise distinctions they make in writing, say, academic papers.


That's hysterically funny, because what you were doing here was making a big fuss about the alleged importance of making "precise distinctions."
5.18.2009 10:29am
jukeboxgrad (mail):
11-B/2O.B4:

so queue up an out-of-context quote and an extreme position


And if you can show an example of me using "an out-of-context quote" or "an extreme position," that would also be helpful. Then again, you might be like nieporent and have a fetish for making false accusations.
5.18.2009 10:30am
jukeboxgrad (mail):
11-B/2O.B4:

"Your honor, I was forced to stand in place for hours, which cramped my leg muscles and made me dizzy, I was clearly tortured". Silly? Certainly, and I'm not trying a slippery slope here, this is hypothetical. What is the objective difference between the two? The only difference is the subjective experience of pain, which gets us into philosophical territory.


If a future enemy shackled an American in a standing position for 180 hours, so that he was continuously deprived of sleep for that period, aside from being forced to stand for that period, would you refrain from accusing that enemy of torture? And if the enemy hemmed and hawed about how it's a matter of "philosophical territory," would you support that? Or would you simply call a spade a spade, and say that the enemy has committed torture?

How many days, weeks or years would have to elapse before you admitted that it was no longer a matter of "philosophical territory?"
5.18.2009 10:36am
MarkField (mail):

Is the simple infliction of pain and discomfort, without any accompanying physical damage, torture?


We can begin by looking to the language of the statute: "“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering".

So the absence of physical damage is irrelevant. The only question is the pain or suffering was "severe". Judging by your comments, I'd infer that you thought it was.
5.18.2009 10:59am
Philistine (mail):

Is the simple infliction of pain and discomfort, without any accompanying physical damage, torture?



Of course it can be.

Would you really contend that, for example, a future technology which caused excruciating pain by direct stimulation of the nerves would not be torture so long as there were no lasting physical damage?
5.18.2009 11:19am
jukeboxgrad (mail):
philistine:

a future technology which caused excruciating pain by direct stimulation of the nerves


There's no need to wait for the future. It's quite easy to attach electrodes to various parts of your body, and thereby cause "excruciating pain by direct stimulation of the nerves." While also leaving no permanent physical damage.

The pro-torture crowd loves to make a fuss about 'no blood no foul' (i.e., it must be OK if there's no permanent physical damage), but they lack the courage to admit that they are therefore permitting such things as sodomy and electric shock. They also lack the courage to acknowledge that Bybee et al created a legal and analytical framework which implicitly permits such things as sodomy and electric shock.
5.18.2009 12:07pm
Dave N (mail):
David M. Nieporent,

Mark Field (a liberal commentor whom I respect even when I disagree with him) made this comment:
I see that Dave N beat me to the punch with some evidence of context. That's a good start and a good example for some of the posters.
Since JBG had already made his appearance on this thread, and context is his weakness. I thought of him but Mark Field could have been referencing someone else (though obviously not me).

In any event, you are correct. Let's put the context of my recent skirmish with JBG into context. Anderson made a statement about the government being an accessory after the fact. In the next response on the thread, I gently jibed him since "accessory after the fact" has a specific meaning in federal law, which I thought Anderson knew:
Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.
I would note that a variety of left-wing websites claim that the United States is an accessory after the fact if there are no prosecutions--but DailyKos and CrooksandLiars are even less credible as a source than JBG is.

However, using a Westlaw data base of all state and federal cases, I could not find a single case where a prosecutor has ever been prosecuted as an accessory after the fact for failure to prosecute.

(as a side note, if JBG made a similar statement about some conservative website--let's say RedState--he would ascribe everything to the site itself. Whereas, in this instance, I agree that this idiocy was spouted by a "Kos Diarist", but I just used "Daily Kos" in the preceding paragraph. I would expect JBG to sneer that I didn't know the difference between a "diarist" and the site itself. Another of JBG's tactics is to smear those he opposes because of the actions of others when the person or cause he supports has dirtier hands. much like his moral equivilence of the direct relationship between Barack Obama and William Ayers with John McCain's relationship with Otto Bloch who supported a Cuban terrorist or John Hagee's endorsement of McCain as being the equivilent of Obama sitting in Jeremiah Wright's church for over a decade)

In any event back to main point. JBG jumped in and cited CAT--apparently in total ignorance that a) CAT is not self-executing and b) has nothing to do with government officials being accessories after the fact, which is what Anderson said. JBG said:
Except that CAT specifically requires us to investigate and prosecute "wherever there is reasonable ground to believe that an act of torture has been committed." And that "reasonable ground" has already been established. Cheney has essentially delivered a public confession.
I then noted that prosecutors have complete discretion absent specific language to the contrary.

JBG's response:
If you would provide me with specific language in the CAT that mandates prosecution
I already did
His version of "I already did" was a link to the prior post with a link to CAT. Since I asked for a specific portion, his response was, at best, a non-answer.

I pointed to the specific language of CAT, and explained why there was no mandatory prosecution provision. I also quoted the federal statute (and provided a link) though I typo'd the wrong statute number in my post. I did note that CAT was not self-executing.

JBG acknowledged that I cited the correct provision regarding prosecutorial discretion but then said:
Which means that if it's our normal "manner" to fail to prosecute ordinary offenses "of a serious nature," then it's OK for us to ignore this one, too. So is it our normal practice to fail to prosecute ordinary offenses "of a serious nature?" Even after the case has been submitted to "competent authorities for the purpose of prosecution?" Even after an investigation found "reasonable ground to believe" that an offense "of a serious nature" had been committed? Really? I had no idea. Maybe you can offer an example.
JBG then quoted President Reagan as if Reagan's statement was authoratative.

I noted that there was no mandatory language in the CAT or in federal law for prosecutions under 28 U.S.C. § 2340A. I also added in my next post that a prosecutor has discretion even when charging "major crimes."

JBG then quoted Reagan again, as if President Reagan's words somehow trump the actual language of federal law.

I had a three part response to his use of Reagan as some kind of trump card: 1) Reagan's words have context; 2) Reagan had made another CAT statement obviously written by State Department Lawyersabout CAT; 3) Reagan was not a lawyer. I also asked, rhetorically, that if Reagan could speak authoritatively as President, why couldn't Bush. too?

In my next post I also noted JBG's sloppy use of the word "ratify."

To my rhetorical question, JBG responded, paraprhasing, "Bush is a liar." But that response is irrelevant. The relevant question is whether a President speaks authoritatively about law. He also said that Reagan's words weren't important:
So it doesn't really matter to me whether or not Reagan said it. Trouble is, it matters to you.
Note that he is the one who twice cited Reagan as authority.

JBG might smugly think he has won this debate (the issue being whether prosecutors have discretion not to prosecute under 28 U.S.C. § 2340A. OK or Eugene can settle the issue and I will be happy with their response.

As for JBG, he's not worth my time responding to further.
5.18.2009 12:50pm
jukeboxgrad (mail):
dave n:

His version of "I already did" was a link to the prior post with a link to CAT. Since I asked for a specific portion, his response was, at best, a non-answer.


Your claim that I failed to provide "a specific portion" is false. The "prior post" is here. And it contains more than just "a link to CAT." It does indeed contain "a specific portion." I quoted this text: "wherever there is reasonable ground to believe that an act of torture has been committed." I interpret that as an obligation to investigate and prosecute. And this is consistent with Reagan's statement.

JBG then quoted President Reagan as if Reagan's statement was authoratative. … The relevant question is whether a President speaks authoritatively about law.


I'm still waiting for you to explain why Reagan's lawyers permitted him to make a statement that wasn't "authoratative." This was a prepared speech with international implications, not a casual remark.

I also added in my next post that a prosecutor has discretion even when charging "major crimes."


I'm also still waiting for you to show an example of a prosecutor failing to prosecute an offense "of a serious nature," even after the case has been submitted to "competent authorities for the purpose of prosecution," and even after an investigation found "reasonable ground to believe" that an offense "of a serious nature" had been committed.

I'm also still waiting for you to address the other arguments on this point, which are explained here and here. Especially the statement by "John Bellinger, the Legal Adviser to the Bush State Department."

Reagan's words have context


You suggested that some other documents contradicted his statement (links to those documents are here). In particular, you made this brazenly false claim:

the Congressional Research Office has noted that American citizens were excluded


The CRS report you cited (pdf) says nothing of the sort. When are you going to retract that false claim?

And none of the other documents support your claims, either.

if Reagan could speak authoritatively as President, why couldn't Bush. too?


If you're trying to say that Reagan is just as dishonest and unreliable as Bush, I have no problem with that. Be my guest. But it's hard to imagine what Reagan's motivation would be for telling this particular lie. Whereas the motives for Bush's lies are self-evident.

Note that he is the one who twice cited Reagan as authority.


That's because I assume that you see Reagan as someone who should be taken seriously. But if you think he's a dunce, just let me know. That won't ruin my day.
5.18.2009 1:23pm
MarkField (mail):

I thought of him but Mark Field could have been referencing someone else (though obviously not me).


My reference was to the original post, which I thought lacked context.
5.18.2009 1:26pm
cboldt (mail):
-- 28 U.S.C. § 2340A. --
-- As for JBG, he's not worth my time responding to further. --
.
Not even if you get called stupid, a liar, etc. for stating 28 USC instead of the correct 18 USC?
5.18.2009 1:50pm
Dave N (mail):
JBG,

Here's the Department of Justice's report (found via a 15 second Google search for "decline prosecution murder" (since, frankly, murder is about the most serious crime I can imagine).

Between October 1, 1996 and September 30, 1997, federal prosecutors declined 27% of all "violent" crimes submitted to them for prosecutions (the graph is on page 12).

I realize those statistics are old. If you can find DOJ statistics from more recent years that show a different number, well, then, good for you.

You keeping citing CAT. CAT is federal law only to the extent Congress has passed provisions that enact CAT, which is the point about CAT not being self-executing.

Point to the relevant sections of federal law besides 18 U.S.C. § 2740A (I acknowledge there are others) that point to the claims you have been making about CAT and your "proof" that prosecutors have no discretion--remember, that is the key issue we are discussing. I am not going to get into a discussion of what I think of various personalities. With respect to Ronald Reagan, I haven't cited him as authority, you have.
5.18.2009 2:08pm
Dave N (mail):
Mark Field,

I apologize if it appeared I was trying to drag you into my discussion with JBG. I wasn't, though I could see that it might be construed that way.

The only point I wanted to make about you is that while you are partisan, I also know that you are honorable in your posts, respectful in your discourse, and basically, the opposite of JBG in every conceivable way except for your political views.
5.18.2009 2:16pm
MarkField (mail):

I apologize if it appeared I was trying to drag you into my discussion with JBG. I wasn't, though I could see that it might be construed that way.


No apology necessary; I understood that you were describing your own thought process.

I appreciate, as usual, the kind words, and return the compliment (without intending thereby any commentary on or criticism of jbg; I'm staying out of meta discussions).
5.18.2009 3:25pm
M N Ralph:

Let me ask a hypothetical question that begins the process here for me. Is the simple infliction of pain and discomfort, without any accompanying physical damage, torture? If your answer is yes, then oppose waterboarding, because it is both painful and discomforting. Just be advised that using a definition like that, in legal terms, opens up a whole new bag of worms.


The Federal Torture Statute contains a definition of torture, which requires the infliction of severe physical or mental pain or suffering to be "torture." So, to answer your question, I think it is absolutely clear that there is some level of pain and suffering that is NOT torture because it is not sufficiently "severe." OTOH, there is no requirement that the process produce any physical damage to be considered torture.
5.18.2009 3:29pm
Harry Eagar (mail):
We waterboard our own guys to teach them how to resist questioning.

We would not, I doubt, rip out our own guys' fingernails on the same principle.

Here's a real-world definition of torture:

Torture is what you wouldn't do to your own guy.
5.18.2009 7:07pm
jukeboxgrad (mail):
cboldt:

Not even if you get called stupid, a liar, etc. for stating 28 USC instead of the correct 18 USC?


It would be nice if you could discuss an error without introducing new errors. The error was not "stating 28 USC instead of the correct 18 USC." The error was stating 18 U.S.C. § 1740A and then 18 U.S.C. § 2740A instead of the correct 18 U.S.C. § 2340A.

And speaking of 'errors,' I didn't call anyone "stupid, a liar, etc" for making this error. What I did is I pointed out the error. But your phony accusation suggests that "stupid, a liar, etc" applies to you.

=====================
dave n:

Between October 1, 1996 and September 30, 1997, federal prosecutors declined 27% of all "violent" crimes submitted to them for prosecutions


That figure is misleading, because "not all suspects whose matters were declined for prosecution avoided prosecution" (pdf, p. 5 in Adobe Reader). The 27% you cited includes cases that are "referred or handled in other prosecutions, or settled through alternative resolution." So the number that truly escape prosecution is lower than 27%.

It's also important to take into account the basis for declination. That's documented in Table 1.3 (see p. 10 in Adobe Reader). The most common reasons are "No crime" and "Weak evidence." But I don't think that applies in our matter, because we essentially have public confessions, on the record.

Then there are some very vague categories, like "Minimal Federal interest," for 3.7%, or "Lack of resources," for 2.8%. But there's nothing here to indicate that excuses like that are considered acceptable in a case where there is a crime of a serious nature, and where there is strong evidence. (Note that Table 1.3 is not looking at only violent crimes, let alone violent crimes of a serious nature. It's looking at all "criminal matters.") Which seems to the case in the situation we're discussing. Recall what CAT says:

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.


If we deal with the torturers "in the same manner as in the case of any ordinary offence of a serious nature," it seems that we cannot fail to prosecute unless an investigation finds that there is no crime, or that the evidence is weak. Because there's nothing in the document you cited to indicate that it's our normal "manner" to decline serious cases unless there's a good reason to do so (like weak evidence).

And let's back up a step and note that CAT requires an investigation:

Article 12 - Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.


I agree that if such an investigation finds nothing but weak evidence, then we can pursue our normal "manner," which is to decline to prosecute. But it seems to me that we're already past the 'weak evidence' stage.

CAT is federal law only to the extent Congress has passed provisions that enact CAT, which is the point about CAT not being self-executing.


The Senate specified certain reservations. It seems to me that we are obliged to respect all portions of CAT that are not excluded by the reservations.

Point to the relevant sections of federal law besides 18 U.S.C. § 2740A


It's 2340A, not 2740A.

And I'm still waiting for you to explain why you claimed that I failed to provide "a specific portion" of CAT in my post here. That claim is false. And I'm also waiting for you to explain why you said "the Congressional Research Office has noted that American citizens were excluded." That claim is also false.
5.18.2009 7:09pm
jukeboxgrad (mail):
eager:

We waterboard our own guys to teach them how to resist questioning.


This is definitely one of the top Torture Lies That Won't Die; i.e., the idea that the procedure we used on our captives is the same procedure we used on "our own guys."

The debunking of this lie, along with the debunking of some of the other major torture lies, can be found via here.

Here's a real-world definition of torture: Torture is what you wouldn't do to your own guy.


Let us know if you think that waterboarding someone 183 times (using the CIA procedure, not the radically more benign SERE procedure) is something we would do to "our own guys."

Likewise for shackling someone in a standing position for 180 hours. Something we would do to "our own guys?" Really?
5.18.2009 7:17pm
cboldt (mail):
-- The error was not "stating 28 USC instead of the correct 18 USC." --
.
That error appeared at 5.18.2009 12:50pm
.
-- I didn't call anyone "stupid, a liar, etc" for making this error. What I did is I pointed out the error. But your phony accusation suggests that "stupid, a liar, etc" applies to you --
.
Lighten up, Francis. You hadn't pointed out the error at the 5.18.2009 12:50pm post, as you had in earlier posts. My "phony accusation" was a hypothetical; would you get a response if you acted out. You've thrown liar and stupid at me enough times that it's lost its impact.
5.18.2009 7:20pm
jukeboxgrad (mail):
My "phony accusation" was a hypothetical


The irony is off the scale. You went out of your way to highlight an error he made, in order to give yourself an opportunity to gratuitously mock me for doing the same thing you did: point out an error he made.

You're funnier than a barrel of Cheneys.

You've thrown liar and stupid at me enough times that it's lost its impact.


I've called you liar and/or stupid this many times: zero. Aside from quoting you in this thread, where you accused me ('hypothetically,' I guess) of using those terms.
5.18.2009 7:30pm
cboldt (mail):
-- You went out of your way to highlight an error he made, in order to give yourself an opportunity to gratuitously mock me for doing the same thing you did: point out an error he made. --
.
It wasn't any trouble, really. The situation more or less fell into place. I included Dave N's "As for JBG, he's not worth my time responding to further" as a necessary part of the setup, too.
5.18.2009 7:35pm
cboldt (mail):
-- I've called you liar and/or stupid this many times: zero. --
.
Hypertechnically true. I have no objection to the tenor of our dialog. I rather prefer a rough and tumble environment when dealing with pedants, and freely admit that I've been "giving it out" as well as being on the receiving end. That said, your claim is risible. From a separate, recent thread:

Next time try English.
Duh.
That depends on how one defines 'painfully ignorant.'
Your standards are exceptionally low, but we already knew that.
not everyone has standards as low as yours.
If you're not familiar with the meaning of the word "secret," I suggest you look it up in the dictionary. You might find that "clarifying."
Why are you making shit up?
5.18.2009 7:48pm
jukeboxgrad (mail):
You're right, I forgot that I did accuse you of making shit up. That's because you appeared to be making shit up. You then claimed you were just making a mistake ("mea culpa"). Could be, but I don't believe you.

So you're right about the "liar" part. But when I accuse you of having low standards, or expressing yourself obliquely ("Next time try English"), or being deliberately obtuse ("Duh"), that has not much to do with either "liar" or "stupid." So you're tossing in a bunch of things that aren't relevant. Which is very close to making shit up.

There are a few questions waiting for you at the other thread.
5.18.2009 8:22pm
Harry Eagar (mail):
juke, I wasn't there. I've seen allegations that the US used the strappado, which, if true, would be torture. It was the favorite method of the Holy Inquisition.

I'll stick with my general rule: If you do it to your own guys, it ain't torture.

Pink undies ain't torture, either.

Shutting a guy up in a file drawer for six months, which would not leave marks, would, nevertheless be torture, 'cause we wouldn't do that to train our own guys.

Moral arguments against torture are more persuasive if they aren't just downright silly.

If I had to name someone who has been loud in the denunciation of torture who has not also lumped in things that no normal person would call torture, I might have a hard time doing it.
5.18.2009 8:47pm
jukeboxgrad (mail):
things that no normal person would call torture


I think the more serious problem is that our government has done things that no normal person would call not-torture. Like shackling someone in a standing position for 180 hours.

And this wasn't the act of "a few bad apples." It was an official policy, officially approved by the torture enablers at OLC.
5.18.2009 9:45pm
davod (mail):
"Like shackling someone in a standing position for 180 hours."

Evidence?
5.18.2009 10:23pm
M N Ralph:

I'll stick with my general rule: If you do it to your own guys, it ain't torture.


First, this is simply not the legal standard for what constitutes torture. So, it's really beside the point in answering the question of whether or not what the US did was a crime.

Second, even from a normative stand point, I don't think your suggested rule speaks to what we did to detainees. The intensity and duration of various techniques differ greatly. Even if the exact same techniques were used and for the exact same time period and with the exact same intensity, there's still a fundamental difference in psychological effect (i.e. mental pain and suffering) when it's voluntarily submitted to and can be ended at will versus involutarily inflicted without absolutely no control or knowledge as to what is going to occur.
5.18.2009 11:34pm
jukeboxgrad (mail):
davod:

Evidence?


I see you want to make sure everyone knows that you haven't even bothered to read the memos. Maybe you should consider doing that before you make even more of a fool of yourself. And if you really, really can't find the answer, then come back and ask again.

And not just shackled in a standing position for 180 hours. Here's more of a complete description: your arms are elevated by the shackles, sometimes partially and sometimes over your head. You are continuously deprived of sleep because if you start to fall asleep the shackles produce tension on your wrists. You are wearing only a diaper, and being fed a partial starvation diet consisting of liquids only. You are also probably exposed to temperature extremes.

Torture yet? Or still just "enhanced interrogation techniques?"

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

when it's voluntarily submitted to and can be ended at will


Yes. And the "ended at will" part is an important detail that is routinely overlooked. SERE trainees can immediately stop any of the techniques that are being applied to them.
5.19.2009 8:11am
jukeboxgrad (mail):
And any 'torture' procedure that can be instantly stopped at will by the 'victim,' simply by uttering a pre-agreed special phrase (i.e., a safeword) is not torture. It's 'torture.' According to any legal definition, and according to any common sense definition.

And this is the least of the differences between CIA waterboarding and SERE waterboarding.
5.19.2009 11:30am
davod (mail):
Jukie:

I made the mistake of reading your link to the Atlantic. The last time I will take you seriously.

Where does it say someone was shackled in the standing position for 180 hours.
5.19.2009 12:47pm
zuch (mail) (www):
It's amazing how popular 'prosecutorial discretion' becomes (even before any investigation) when there's a Republican official under the microscope.
5.19.2009 1:03pm
jukeboxgrad (mail):
davod:

I made the mistake of reading your link to the Atlantic. The last time I will take you seriously.

Where does it say someone was shackled in the standing position for 180 hours.


I think I need to write with bigger crayons. I did not link to the Atlantic for the purpose of documenting my claim about shackling. I linked to the Atlantic to point out the origin of the term "enhanced interrogation techniques."

In my very recent comment here, addressed to you, I said this:

I see you want to make sure everyone knows that you haven't even bothered to read the memos. Maybe you should consider doing that


I highlighted the key words. If you don't know what memos I'm talking about, or where to find them, then instead of reading VC threads you should be reading stuff like this.
5.19.2009 1:56pm
davod (mail):
Jukie. Relax. I will no longer bite when you comment on my comment.
5.19.2009 2:22pm
jukeboxgrad (mail):
"Bite" is an interesting euphemism for 'go out of my way to demonstrate that I have exceptionally poor reading comprehension.'

And my comment here was not a comment on your comment. It was a response to a question you asked me. Maybe in the future I should ignore your questions.

Did you ever manage to figure out what memos everyone is talking about? And where to find them? I wouldn't want to leave you in suspense.
5.19.2009 3:13pm
zuch (mail) (www):
Guest12345:
Grow up, get a clue and act with some integrity.
See TOS. Frequent posts and long posts are permitted. Calling someone childish rather than addressing their points is frowned upon.

Cheers,
5.19.2009 5:07pm
zuch (mail) (www):
Dave N:
DailyKos and CrooksandLiars are even less credible as a source than JBG is.
You know, we could say the same (and probably with more veracity) of such as Freeperville, Redstate, NRO, and even Faux Snooze. But C&L tends to simply put up what the wingers have actually said (often the audio or video even, for full effect). How you think that simply quoting them is "less credible" is beyond me.....

And if you want to impugn JBG's veracity, you have to show he's wrong. Good luck with that (see, e.g., 5.17.2009 7:19pm post and followups for how to do this).

Cheers,
5.19.2009 5:43pm
jukeboxgrad (mail):
zuch:

we could say the same (and probably with more veracity) of such as Freeperville, Redstate, NRO, and even Faux Snooze


We could indeed. And unlike the folks here who repeatedly do what dave did, i.e., criticize a particular source without making even a pretense of an effort to show evidence to support the criticism, I criticize NR and Fox because I'm in a position to demonstrate their tendency for posting baloney. Some examples are here, here and here.

if you want to impugn JBG's veracity, you have to show he's wrong


Thanks for your support. But don't be too hard on him. I think he's probably feeling embarrassed about being caught making various false claims (I summarized a couple of those in the last paragraph here).

It's amazing how popular 'prosecutorial discretion' becomes (even before any investigation) when there's a Republican official under the microscope.


It's amazing only if you forget the operative principle: IOKIYAR.

Then again, it's encouraging to notice that some people have indeed made statements putting aside the possibility of prosecutorial discretion, and instead emphasizing the importance of upholding the rule of law, and the principle that no one, not even an ex-president, is above the law:

Even Presidents are not above the law. … The facts and the law, of course, must be the major factors, but prosecutors, especially in important cases, also bear a general responsibility for the public good. … Not indicting … sends a … subtle and sinister message from the [offender's] camp to future generations: "Here's how we got away with it." … the issue [is] … whether a President is above the law. … [An ex-president] is not "above the law… His conduct should not be excused, nor will it. The President can be criminally prosecuted, especially once he leaves office." … "As the Constitution clearly says, [an ex-president] remains subject to the laws of the land just like any other citizen of the United States." … "Whether any of his conduct constitutes a criminal offense … is not for me to decide. That, appropriately, should and must be left to the criminal justice system, which will uphold the rule of law in [his] case as it would for any other American." … Whether or not the President is above the law is ultimately the issue … will his flouting of the law escape even symbolic legal sanctions? … [We must] serve justice today, and uphold its principles for the future. Yes, [he] should be indicted, upholding the principle that even Presidents and ex-Presidents are not above the law.


Very convincing perspective, especially since it's said so emphatically, and since the source is so reputable.
5.19.2009 6:18pm
zuch (mail) (www):
[Harry Eagar]: I'll stick with my general rule: If you do it to your own guys, it ain't torture.
[M N Ralph]:First, this is simply not the legal standard for what constitutes torture. So, it's really beside the point in answering the question of whether or not what the US did was a crime.
Try this: "If I shoot my own soldiers, it's not murder."

Cheers,
5.19.2009 7:54pm
zuch (mail) (www):
Dave N:
JBG then quoted President Reagan as if Reagan's statement was authoratative.

[...]

JBG then quoted Reagan again, as if President Reagan's words somehow trump the actual language of federal law.

I had a three part response to his use of Reagan as some kind of trump card: 1) Reagan's words have context; 2) Reagan had made another CAT statement obviously written by State Department Lawyersabout CAT; 3) Reagan was not a lawyer. I also asked, rhetorically, that if Reagan could speak authoritatively as President, why couldn't Bush. too?

[...]

Note that he is the one who twice cited Reagan as authority.
Clue fer yah! JBG doesn't think Reagan is authoritative. He's just pointing out Reagan's position to get in a dig at all of you that believe the Saint Ronnie hagiography. Nowhere does he base his argument on the authority of Reagan's pronouncements. But he wonders (as do I) whether you thing Saint Ronnie was full'o'shi*te....

Cheers,
5.19.2009 8:48pm
zuch (mail) (www):
cboldt:
[JBG]:-- I've called you liar and/or stupid this many times: zero. -- .
Hypertechnically true. I have no objection to the tenor of our dialog. I rather prefer a rough and tumble environment when dealing with pedants, and freely admit that I've been "giving it out" as well as being on the receiving end. That said, your claim is risible. From a separate, recent thread: ...
JBG may be quite abrasive, but if his complaints are valid, there's hardly room for complaint. I can't speak for all such colloquies, but JBG generally has a point; the objections to his points hold no water. He's a welcome addition to this blog; keeping the RW folks honest, and calling them on it when they're not. He isn't the most polite, but this is understandable. If you want to argue with him, show where he's wrong. If you can't do that (and if you don't acknowledge your own mistakes ["you" generally, not you, "cboldt" in particular]) you ought to expect to get called out.

Cheers,
5.19.2009 9:07pm
zuch (mail) (www):
Harry Eagar:
Shutting a guy up in a file drawer for six months, which would not leave marks, would, nevertheless be torture, 'cause we wouldn't do that to train our own guys.

Moral arguments against torture are more persuasive if they aren't just downright silly.
Did it occur to you that we give these people this "training" to let them know what they may encounter if the enemy tortures them? It should be noted that pretty much all accounts of the SERE training shows that the subjects of such will acquiesce in a surprisingly short time ... and this for people that (assumedly) have nothing to hide!!! Yet we waterboarded one detainee 183 times (something we don't do to our own troops [and for good reason]). Do you think they may have admitted to murdering Jesus Christ himself? And that's not mentioning that the SERE folks volunteered, and have a "get out of jail " card; a safe word or an ability to call an end to the procedure. Where's the "morality" here? And what's the use?

Cheers,
5.19.2009 9:18pm
jukeboxgrad (mail):
zuch:

JBG may be quite abrasive


I appreciate your kind words, and I also acknowledge this accurate observation. But I hope it's apparent that I only abrade those who go out of their way to project their rough edges. I don't believe in unilateral disarmament.

the SERE folks volunteered, and have a "get out of jail " card; a safe word or an ability to call an end to the procedure


That's true, and it's an important point that's often overlooked. But it's also important to understand that there are many other differences between CIA waterboarding and SERE waterboarding. Lots of people have been (and still are) 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


For example, at SERE no one is subjected to more than two instances of waterboarding. And each instance of waterboarding can last a maximum of 20 seconds. Whereas CIA seems to have used 20 seconds as a minimum duration for each instance. It's not clear what the maximum duration was, or even if any maximum was clearly stipulated or followed. And the procedure could be repeated over and over again, for hours. For these and other reasons the comparison to SERE is "almost irrelevant."
5.20.2009 12:04am
zuch (mail) (www):
JBG:

Your abrasiveness bothers me not the least. Go get 'em (and I will do my part keeping the RW torture apologists honest here as well ... or at least try some 183 times or so to see if they'll mend their ways).

Cheers,
5.20.2009 12:48am
jukeboxgrad (mail):
Your abrasiveness bothers me not the least.


Then I guess I'm not trying hard enough. jk.

I will do my part


You do your part very well. There have been lots of times I don't bother to speak up because you got there first, and said it much better than I would have.
5.20.2009 6:53am
Bad English:
Interesting pattern, zuch: Numerous posts in a row when one brief post will clearly suffice.

Has anyone seen Glenn Greenwald lately?
5.20.2009 12:18pm
John Moore (www):
Z &J - lefties in love. It's so sweet.
5.20.2009 1:19pm
jukeboxgrad (mail):
bad:

Has anyone seen Glenn Greenwald lately?


It's much worse than you think. Greenwald, zuch, juke, what's the difference? All these names are just used interchangeably by the staff at the Soros Blogger Cabal. We're like little ants, working in our collective, writing material to get posted under all these different names. Makes perfect sense, right?

And moore? That's one of our names, too. Sometimes we create sockpuppet personas, just for the purpose of making conservatives look dishonest (link, link). You don't really think a real person would be willing to discredit themselves by posting such blatant falsehoods, do you? If moore didn't exist we would have to create him. So we did.
5.20.2009 1:36pm

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