Balkinization  

Tuesday, October 17, 2006

Rights against torture-- without remedies

JB

This op ed by Stephen Rickard points out, correctly, I think, that the "alternative sets of procedures" the Administration wants the CIA to use in interrogating prisoners are still illegal, either because they violate the (now amended) War Crimes Act, the McCain Amendment (which prohibits cruel and inhuman treatment), or Geneva Common Article III (which was not repudiated by the Military Commissions Act).

Any CIA official who acts in good faith will probably conclude that waterboarding, hypothermia, stress positions, and related techniques violate one or more of these features of American law.

What the new Military Commissions Act of 2006 (MCA) did, however, was to make these legal norms effectively unenforceable. That is why Rickard's op-ed is a bit misleading. The McCain Amendment does not provide an individual remedy for violations, the MCA states that individuals cannot enforce their rights under the Geneva Conventions in judicial procedings, including appplications for habeas corpus. As for the (amended) War Crimes Act, it requires that the Justice Department decide to prosecute a CIA official who acted on orders from the President, which, at least under this current Administration, is very unlikely.

The bottom line is simple: The MCA preserves rights against torture and cruel, inhuman and degrading treatment, but it severs these rights from any practical remedy.

This means that the President can have his "alternative sets of procedures"-- i.e., torture lite-- if he can persuade CIA personnel to violate the law with the promise that they will never be prosecuted or punished for doing so. When Rickard suggests that someday CIA officials will have to answer to judges and juries, he assumes precisely what the new bill acts to forestall-- judicial inquiries into the conduct of CIA interrogations.

This is the great irony (and chutzpah) of the President's repeated claim that he only wanted to clarify the law so that the CIA and other officials wouldn't have to break it. The CIA will still be violating the law if it does what the President wants it to do. However, because the Military Commissions Act severs rights from remedies, the Executive branch has the sole power of enforcement. The President decides whether he thinks people in the Executive branch are violating the law, and even if he believes they are violating the law, the President also decides whether he will order them to stop. By now we know the answer to this question. He will not order them to stop. Quite the contrary: the President has made clear in his repeated endorsement of these "alternative" techniques (techniques that he will not name in public) that he will push CIA officials to break the law. Because the Executive branch holds all enforcement powers within itself, the only thing that prevents cruel, inhuman and degrading treatment is the conscience of CIA personnel and executive branch lawyers.

And we know from the fiasco over the torture memo that the conscience of executive branch lawyers has not always been sufficient.

There are many things that are deeply distressing about the Military Commissions Act of 2006. One of the most distressing is its deeply cynical attitude about law. The President has created a new regime in which he is a law unto himself on issues of prisoner interrogations. He decides whether he has violated the laws, and he decides whether to prosecute the people he in turn urges to break the law. And all the while he insists that everything he does is perfectly legal, because, the way the law is designed, there is no one with authority to disagree.

It is a travesty of law under the forms of law. It is the accumulation of executive, judicial, and legislative powers in a single branch and under a single individual.

It is the very essence of tyranny.


Comments:

Wouldn't it be helpful to create and publicize an organization which states as its goal the object of pursuing to justice anyone who violates the various torture laws? If it isn't already taken, "Never Again" seems like a good name...

I really mean this. Aren't there law professors or former prosecutors or other groups willing to sign on to a very public campaign which says to the CIA and others (I'm looking directly at John Yoo), in essence, "Act at your peril. You have no immunity now and even a Presidential pardon is no defense against war crimes."

I have to think that such a campaign would put a damper on enthusiasm within the CIA.
 

If it isn't already taken, "Never Again" seems like a good name...

Someone already grabbed "Not In Our Name", more's the pity...
 

Act at your peril. You have no immunity now and even a Presidential pardon is no defense against war crimes.

Why wouldn't a presidential pardon be a defense against war crimes?
 

Why wouldn't a presidential pardon be a defense against war crimes?

Extradition to the Hague, I'm guessing; a president could pardon an American for breaking American law, but I imagine that pardon wouldn't extend to international law. (Leaving aside how said alleged war criminal would be arrested and tried.)
 

Why wouldn't a presidential pardon be a defense against war crimes?

Because they wouldn't be prosecuted under the jurisdiction of the United States. This current administration might bluster about bombing the Hague, but the time may well come for an ad hoc tribunal. CIA operations personnel might have to think twice about setting foot on foreign soil; I suspect that after 2009, Bush and several of his favourites will also curtail their travel abroad.
 

Under authority would an ad hoc tribunal be set up? The US would obviously veto any Security Council resolution creating such a body. The ICC is irrelvant because the US is not a signatory at this point and certainly never ratified it.

The only possible means of prosecution abroad is in countries such as England or Belgium that have universal jurisdiction laws. But can anyone seriously envision a European country trying an American citizen against the express wishes of the US? It's not about bombing the Hague; the US, I assume you'd agree, has a lot of clout in the political sphere.
 

Trial of US citizens by states claiming universal jurisdiction or by an ad hoc tribunal would probably require the implicit consent of the then-current President. On the other hand, we're looking well into the future here -- future Presidents may not exercise the same influence in the world as they do today.

Another theory, more doubtful, is that under international law it is no defense to war crimes that the actions were legal under domestic law. Obviously, a pardon from Hitler would have been worthless at Nuremburg. I'm personally skeptical whether this principle would trump the pardon power in a prosecution in US courts, but I haven't tried to research the answer.

The uncertainties in these scenarios don't bother me. I intend that they should bother the CIA. If you were a CIA agent, would you bet your life (literally) that no future President will ever allow, or be unable to prevent, your prosecution in a foreign court? Would you do so if there were an organization dedicated to pursuing justice against you similar to those who tracked down former Nazis?
 

Why couldn't the interrogator point to the definitions of "illegal torture" and "illegal cruel and inhuman treatment" that is spelled out in the statute? Those phrases bottom out on 18 USC 2430(2) and 18 USC 113(b)(2).
My read of the statute is that detention and interrogation doesn't rise to illegal torture (a war crime) unless it causes PROLONGED mental or PERMANENT physical damage, and it's not illegal cruel and inhuman treatment unless it causes NON-TRANSITORY mental or PERMANENT physical damage.
 

Trial of US citizens by states claiming universal jurisdiction or by an ad hoc tribunal would probably require the implicit consent of the then-current President. On the other hand, we're looking well into the future here -- future Presidents may not exercise the same influence in the world as they do today.

We're talking about a major change in how the world is structured. I doubt that's something a CIA agent doing an interrogation is going to be thinking about.

Another theory, more doubtful, is that under international law it is no defense to war crimes that the actions were legal under domestic law. Obviously, a pardon from Hitler would have been worthless at Nuremburg. I'm personally skeptical whether this principle would trump the pardon power in a prosecution in US courts, but I haven't tried to research the answer.

That's an interesting question, but it would require that international law be absorbed into domestic law in the way that it negates the pardon power. Considering how the US consistently only signs treaties with the reservation that they not conflict with the Constitution, I don't see this theory going very far.

The uncertainties in these scenarios don't bother me. I intend that they should bother the CIA. If you were a CIA agent, would you bet your life (literally) that no future President will ever allow, or be unable to prevent, your prosecution in a foreign court? Would you do so if there were an organization dedicated to pursuing justice against you similar to those who tracked down former Nazis?

I don't think your organization is going to make a CIA agent lose too much sleep to be honest. So much would have to change in order for any agent to be prosecuted.
 

I don't think your organization is going to make a CIA agent lose too much sleep to be honest.

But it would make a really good TV series.
 

I don't think your organization is going to make a CIA agent lose too much sleep to be honest.

Well, we DO oppose sleep deprivation....
 

Funny you should mention that Mark -- have a look at the Home Page for my preposterous little project...

Project to Enforce the Geneva Conventions

http://www.pegc.us

Just moved it to a new URL, but that site has been up on the internet since late 2002, and resulted from my own personal commitment on 11/13/2001. I've never incorporated or done much about getting support / funding because I'm just one person, and I'm analyst not a salesman, but I've been looking for someone to volunteer to take on those tasks.

It's been clear to me that such an organizartion was needed from the start. The task is absolutely clear: defend the rule of law, the Geneva Conventions, and the Nuremberg Principles. All that and the US Constitution.

It will be five years for me next month. I wouldn't mind some help at all.

Charly
 

Professor Balkin:

This op ed by Stephen Rickard points out, correctly, I think, that the "alternative sets of procedures" the Administration wants the CIA to use in interrogating prisoners are still illegal, either because they violate the (now amended) War Crimes Act, the McCain Amendment (which prohibits cruel and inhuman treatment), or Geneva Common Article III (which was not repudiated by the Military Commissions Act).

Any CIA official who acts in good faith will probably conclude that waterboarding, hypothermia, stress positions, and related techniques violate one or more of these features of American law.


I disagree.

The MCA expressly defines "torture" and "cruel and inhuman treatment" for the purposes of enforcement Common Article III of the Geneva Conventions and the War Crimes Act as intentional infliction of severe pain. The MCA has thus superseded and replaced any alternative interpretations of these terms made by our judiciary or foreign bodies.

Of the coercive interrogation techniques which have been disclosed, only waterboarding even comes close to the intentional infliction of severe pain - in this case mental pain. Techniques to disorient or make the target uncomfortable are not the intentional infliction of severe pain.

The McCain Amendment does not provide an individual remedy for violations, the MCA states that individuals cannot enforce their rights under the Geneva Conventions in judicial procedings, including appplications for habeas corpus. As for the (amended) War Crimes Act, it requires that the Justice Department decide to prosecute a CIA official who acted on orders from the President, which, at least under this current Administration, is very unlikely.

I do not see a provision in the MCA barring a civil law suit seeking an injunction against future applications of a particular interrogation technique which is in violation of the definitions set forth in the MCA. This would not need to be a habeas petition.
 

Bart,

You say (among numerous silly things):

I do not see a provision in the MCA barring a civil law suit seeking an injunction against future applications of a particular interrogation technique which is in violation of the definitions set forth in the MCA.

Check your calendar. Mine says "2006." The implication of private rights of action under stautes that don't expressly provide for private rights of action has been strongly disfavored by the Federal judiciary for at least 15-20 years.

I am, however, enjoying the irony inherent in your throwing up as a straw man a pillar of the 1960s liberal approach to justiciability that has been thoroughly repudiated by the right-wing judiciary.
 

It's so precious, watching Bart try out for John Yoo's old job.

And it's especially cute watching him talk about forced standing for 40 hours (or 24, for that matter) as if it didn't cause severe pain. Nothing like COMPLETE IGNORANCE to persuade.

Send your resume to DOJ, honey. Just don't try to impress any grownups.
 

burnspbesq said...

Bart: I do not see a provision in the MCA barring a civil law suit seeking an injunction against future applications of a particular interrogation technique which is in violation of the definitions set forth in the MCA.

Check your calendar. Mine says "2006." The implication of private rights of action under stautes that don't expressly provide for private rights of action has been strongly disfavored by the Federal judiciary for at least 15-20 years.


This is true. However, the MCA arguably falls well within the four prong test of Cort v. Ash, 422 US 66 (1975):

A. Is plaintiff one of the class for whose especial benefit the statute was enacted?

Yes. The MSA rules for the interrogation of unlawful enemy combatants apply to a very small and select group of plaintiffs. Cf. California v. Sierra Club, 451 US 287 (1981)(holding that statute applying to public at large did not satisfy the first prong in Cort).

B. Is there any indication of legislative intent, explicit or implicit, to create or deny such a remedy?

Yes. Congress did not provide an alternative means of enforcement. Cf. Karahalios v. Federal Employees, 489 US 527 (1989)(holding that CRSA did not satisfy the Cort second prong because Congress had provided an administrative enforcement mechanism).

C. Is it consistent with underlying purposes of legislative scheme to imply such a remedy for plaintiff?

The purpose of the MSA is to establish the rights of lawful and unlawful combatants. These rights need some method of enforcement.

D. Is cause of action one traditionally relegated to state law?

No. The President and Congress are the only entities with the power to set rules for Captures.

Instead of dismissing the argument with a casual snark, you may want to actually research the point.
 

Anderson said...

It's so precious, watching Bart try out for John Yoo's old job. And it's especially cute watching him talk about forced standing for 40 hours (or 24, for that matter) as if it didn't cause severe pain. Nothing like COMPLETE IGNORANCE to persuade.

You obviously have obviously never suffered anything like real pain, nevertheless the extreme of "severe pain." Its time to grow up.

In order to merely graduate from boot camp, Marine recruits must all endure 54 hours of constant marching and maneuvers with fully loaded packs on blister covered feet.

...Be sure to ask a Marine to tell you about The Crucible! Recruits will travel 42 miles on foot during the event. There are 29 problem-solving exercises during the Crucible. It consists of 36 different stations. The recruits will have three meals, ready-to-eat (MREs) during the 54 hours. The recruits will be required to carry ammunition cans up to 50 pounds and dummies up to 100 pounds during the Crucible, in addition to 782 gear, uniform and M16 A2 service rifle weight.

http://thefuntimesguide.com/movabletype/
archives/2006/08/parris_island.html

Making a prisoner merely stand for a shorter period of time is far less strenuous and painful. Indeed, the purpose of the long time standing technique is to exhaust the prisoner, not to inflict pain.

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

http://abcnews.go.com/WNT/Investigation/
story?id=1322866
 

Bart,

Nice parroting of the Cort v. Ash four-part test.

You might have mentioned that the plaintiff lost in that case, and in virtually every other case in which the Supremes have considered the issue (the sole exception of which I am aware is Cannon v. University of Chicago, a Title IX case -- Bakke doesn't count as an implied-private-right-of-action case, because the Court expressly declined to reach that issue).

And I'm curious: did you Shepardize the case? And if you did Shepardize it on LEXIS, did you notice the little red stop sign icon and the word "overruled" in bold type?

Didn't think so.

What's the old saying? Ahh, now I remember:

When you've got good facts, bang on the facts. When you've got good law, bang on the law. When you've got neither good facts nor good law, bang on the table.

You've made your point. You can stop banging on the table now.
 

Just making sure to let you know that this is something I've been writing about for awhile, and convening an investigating grand jury over the matter of torture in contravention of the constitution and the abandonment of same by the congress.
 

Bart said: In order to merely graduate from boot camp, Marine recruits must all endure 54 hours of constant marching and maneuvers with fully loaded packs on blister covered feet...

Making a prisoner merely stand for a shorter period of time is far less strenuous and painful. Indeed, the purpose of the long time standing technique is to exhaust the prisoner, not to inflict pain.


You're making several mistakes here. One is comparing Marine recruits at the peak of their strength with a hypothetical prisoner who may not be (and probably isn't) in comparable physical condition.

Another is to claim that Marines march for 54 hours straight during the Crucible; this is false. Two 4 hour sleep breaks are provided, as well as various station stops, health and welfare checks, meal breaks, and rehydration at the "water buffalo." Take a look at this video ( http://www.marines.com/page/usmc.jsp?pageId=/page/Detail-XML-Conversion.jsp?pageName=The-Crucible&flashRedirect=true ) and see if you can spot some moments where they're not marching.

The third mistake is your assumption that standing around isn't painful--an assumption I think is based in a Whorfian linguistic turn. Namely, you think of prolonged standing as the kind of thing you do at the DMV. Mild discomfort, no biggie. But the body need not be vertical to be "standing." Touch your toes for 24 hours straight and then tell me it's not painful. Additionally, the prisoner is likely to be barefoot during the interrogation process, and will lack the supportive footgear that the recruits have.

That's leaving aside the now famous material from "Communist Interrogation and Indoctrination of Enemies of State" by Wolff and Hinckle that contains the description of the effects of prolonged standing: ankles and feet swelling up to twice their normal size, large blisters, increased heart rate, fainting, kidney failure.

You can argue the merits of the MCA to the high heavens using four- six- or even eight- pronged tests, but please don't try to excuse methods of torture by comparing them with Marine Corps training procedures. As an ex-marine, I find the comparison repugnant and extremely inappropriate.
 

burnspbesq said...

Bart, Nice parroting of the Cort v. Ash four-part test. And I'm curious: did you Shepardize the case? And if you did Shepardize it on LEXIS, did you notice the little red stop sign icon and the word "overruled" in bold type?

No I did not because I posted from home. I am unaware of the Supremes overruling Cort. The cases in this area of which I am aware all used the Cort test.

Perhaps, I am wrong. Feel free to give us the cite to the case which you believe overrules Cort.

The current Court has bent over backwards to grant alien enemy combatants hearings. Given the unusual facts, I am not at all sure that the Court would reject a private suit on behalf of multiple detainees to enforce the MCA.
 

Does the Act really criminalize the enhanced techniques? What's wrong with the following argument?

Ladies and Gentlemen of the Jury: My client, an employee of the CIA, stands accused of war crimes – of torture and of cruel treatment of a man my client believed to be a terrorist.

My client admits he caused the suspect to undergo waterboarding, to stand naked for forty hours at a time, to be doused with ice water in 50-degree cold, and to be beaten multiple times with a garden hose, all of which caused the man to suffer nightmares.

But did my client commit a war crime under United States law?

To prove torture, the proscecution must prove the suspect suffered “SEVERE physical or mental pain or suffering;” but to prove cruelty, it need only prove that he suffered “SERIOUS physical or mental pain or suffering.”

This distinction is fundamental. The crime of cruelty involves pain or suffering that, while serious, is less severe than torture. Since cruelty is less severe than torture, it follows that my client’s conduct cannot amount to torture unless, at a minimum, it also amounts to cruelty.

To prove that under U.S. law, the prosecution must first prove that the suspect suffered a “serious bodily injury” that involves either a substantial risk of death, extreme physical pain, serious burns or disfigurement, or the significant impairment of a bodily or mental function. The suspect, however, suffered no bodily injury whatsoever. The closest thing to an injury might be the bruises caused by the garden hose. But the statute expressly provides that mere bruises do not amount to the kind of serious bodily injury that must be proved.

Now the prosection will insist that pain, by itself, may be so “extreme” as to amount to a serious bodily injury under the law. But ask yourselves: Is any pain my client may have caused really like the other kinds of pain that constitute a serious bodily injury under the law – the pain of a potentially fatal wound, or a serious burn, or the loss of a kidney? Or was the pain at issue here, if indeed there was pain, more like that of a muscle strain, or a sprained ankle?

In short, my client did not cause the kind of serious bodily injury that the prosecution must prove to prove cruelty. No serious bodily injury, no cruelty. No proof of cruelty, no proof of torture.

But wait, the prosecution will say: The defendant admits the suspect suffered nightmares, and that is evidence that he caused the kind of “serious mental pain or suffering” that also constitutes a war crime!
Again, however, the prosecution would have you convict for acts that are not crimes.

Under our law, the kinds of “serious mental pain or suffering” that amount to war crimes are those that result from, and I quote, “the intentional infliction or threatened infliction of serious PHYSICAL pain or suffering.” The prosecution cannot prove serious MENTAL pain or suffering amounting to cruelty without proving serious physical pain or suffering amounting to cruelty; and the prosecution cannot prove that without proving the suspect suffered a serious bodily injury. Since the suspect was not seriously injured, the prosecution cannot prove mental cruelty of the kind that constitutes a war crime.

No mental cruelty, no mental torture either. I rest my case.
 

PMS_Chicago said...

Bart said: In order to merely graduate from boot camp, Marine recruits must all endure 54 hours of constant marching and maneuvers with fully loaded packs on blister covered feet...

Making a prisoner merely stand for a shorter period of time is far less strenuous and painful. Indeed, the purpose of the long time standing technique is to exhaust the prisoner, not to inflict pain.

PMS: You're making several mistakes here. One is comparing Marine recruits at the peak of their strength with a hypothetical prisoner who may not be (and probably isn't) in comparable physical condition.


My intent was to give some context to what is meant by "severe pain" to an audience including a number of sedetary people who think a hangnail constitutes "severe pain."

The condition of the target is of no consequence. The objective of interrogation is not to give the target a fair chance to resist the interrogation. Rather, the purpose is to break the target as quickly as possible and learn what he knows. If the target is weaker and easier to break, so much the better. This is war, not a game.

That's leaving aside the now famous material from "Communist Interrogation and Indoctrination of Enemies of State" by Wolff and Hinckle that contains the description of the effects of prolonged standing: ankles and feet swelling up to twice their normal size, large blisters, increased heart rate, fainting, kidney failure.

Targets are provided medical care. Killing them will not achieve the objective of gaining information. As for the poor babies' swollen and sore feet, I could give less than a damn.

During the Persian Gulf War, I was a platoon leader in command of four Bradley Fighting Vehicles. I stood in the turret of my lead vehicle for most of the 89 hours of the ground offensive. My feet were indeed swollen and sore during this period. Life is tough. I was not being tortured or being treated cruelly. It was my job.

My feet were far more sore and blistered when I was humping a 50 lbs pack and carrying an M60 machine gun a few years before in the 82d Airborne. Once again, I was not being tortured or treated cruelly. I was sore, not in severe pain.

Our soldiers are putting up with far more pain and discomfort fighting the enemy than any captured enemy endures under our interrogation. I sure as hell am not going to give the enemy a break which he does not give our soldiers.
 

Vince, don't quit your day job.

It would be a cinch to put on expert testimony on Soviet torture techniques, and not so hard to have actual victims of those techniques (which we've plagiarized) testify.
 

vince, i would second the suggestion from the previous post. it's a nice legalistic turn of a phrase or two, but for those of us who actually try cases before a jury, just try it. you will inflame the average juror simply by admitting that your client committed repugnant acts, and regardless of the accuracy of technical arguments, they won't hear another word. in a nutshell, that is why the administration will never allow a single interrogator to be prosecuted unless they go unbelievably overboard and a scapegoat is needed.
 

Re Why wouldn't a presidential pardon be a defense against war crimes?

Can a president validly pardon himself for a crime he has committed? If not, can the president validly pardon the agent that executes his own criminal policy?

Can a federal statute that decriminalizes genocide be constitutional? If international law is our law, including customary law, then how would this tension be resolved constitutionally? (If a federal law authorizing genocide is a nullity on constitutional grounds, then surely a law decriminalizing torture is a nullity as is a law that immunizes torturers.)

If current domestic precedent and dicta favors the president and congress, what are the odds that the precedent and dicta will be reversed by the third branch?

No, I haven't researched this, but this doesn't require venturing into the question of universal jurisdiction or internationally constituted organs, which is a pipe dream in the absence of a civilization crushing event.
 

Can a president validly pardon himself for a crime he has committed?

Probably yes. The pardon power's quite broad, & it's never been held that he *can't* pardon himself.
 

my sense is that the president does not have the power to pardon himself. i know that there is nothing in the constitution that says he can't, but there also isn't anything in there either that says he can. the pardon power clearly refers to the president pardoning others, although i suppose that this is another one that the framers really didn't think of at the time.

although it clearly is not on the same level, i would analogize this to the line of cases that goes back to english common law holding that you cannot contract away your own negligenc. by analogy, you cannot commit a crime and then declare yourself immune from prosecution.
 

Anderson,
I respectfully disagree with your conclusion. While my recollection is that none of these posited issues have ever been decided by the Supreme Court, it is also my belief that the Court has not been confronted with a constitutional crisis of this sort before. It seems anomalous that the executive in any common-law government can pardon himself: I think that issue was resolved in Cromwell's time. I forgot who authored the truism that the Supreme Court follows election returns, but there is some truth to it and it won't take a particularly bold court to cut the wind out of an intensely unpopular president.
 

Allowing a President to pardon him or herself would not make any sense because it would moot the impeachment process.
 

Bart: I interrogate for a living, and what you call a trifle (the stand-up) is torture.

I first heard of it when I was studying interrogation, it was listed as one of the more cruel things done to people, because it caused severe pain and could lead to permanent injury, or death.

It's nice to see someone who recalls Rumsfeld dismissing charges of cruelty/torture from the use of this technique with a casual, "what the big deal, I stand for ten hours a day."

Things like The Crucible are trained for, and accepted, in advance, by those undergoing them. They know it will end. That, in, and of, itself, makes it more bearable.

Further, if they can't take it, if they fall apart, mentally or physically, they are removed. They get to sleep (two breaks of four hours, more than I got in some of my time in Iraq, but I digress). They are yelled at, when they try to quit, but if they want to, they can.

The same is not true of someone in custody.

As for private action, this law, and the previous McCain Amendment both specifically deny a private right of action, so I don't see the slam dunk for someone under this statute, if the broad outlines are upheld.
 

Bart DePalma: I do not see a provision in the MCA barring a civil law suit seeking an injunction against future applications of a particular interrogation technique which is in violation of the definitions set forth in the MCA. This would not need to be a habeas petition.

I do. The provision is black-letter law. Not only habeas actions are barred, but also any other actions. See the new paragraph (2) below.

SEC. 7. HABEAS CORPUS MATTERS.

(a) In General- Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e):

`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

 

bart: Targets are provided medical care. Killing them will not achieve the objective of gaining information. As for the poor babies' swollen and sore feet, I could give less than a damn.

Tell that to dilawar, oh wait, he's dead. He wasn't being respectful enough to his interrogator, who (having chained him to a pipe, so he couldn't sit down) thumped him a few times in the legs.

A little edema (those swollen ankles and knees you so cavalierly discount) and his system shut down, from restricted blood flow and renal failure.

The best part, he didn't know anything.

I'll tell you what, you come to me, and I'll give you a taste of the "non-tortures" you don't give a damn about. The only thing I promise is not to kill you. When I think you've had enough, I'll let you go.

Until then, you can take all the tough-talk about your sore feet and how things like this aren't torture, and besides the interests of collecting info (which torture can't do, but that's another topic altogether) would never allow any sort of real damage to take place, and enjoy it with a nice warm cup of STFU.
 

burnspbesq [responding to "Bart"]:

["Bart"]: I do not see a provision in the MCA barring a civil law suit seeking an injunction against future applications of a particular interrogation technique which is in violation of the definitions set forth in the MCA.

burnspbesq [responding to "Bart"]:
Check your calendar. Mine says "2006." The implication of private rights of action under stautes that don't expressly provide for private rights of action has been strongly disfavored by the Federal judiciary for at least 15-20 years.

I am, however, enjoying the irony inherent in your throwing up as a straw man a pillar of the 1960s liberal approach to justiciability that has been thoroughly repudiated by the right-wing judiciary.


How observant of you. "Bart" has long argued against standing to sue in such as the el-Masri case and the ACLU case, saying that you need a concrete injury for standing, and that the "state secrets" privilege prevents the plaintiffs in these suits from establishing injury for actions that (may) have already occured. In addition, he's posted long and hard about the suposed impossibility of the Dubya maladministration bringing a "test case" in advance to determine the legality of the warrantless wiretapping, if the so desired (which, of course, they most definitely do not), claiming that the judiciary doesn't give "advisory" opinions.

Yet here, he suggests that future aspiring illegal enemy combatants simply go to court to get a restraining order in advance so that they won't have to face the prspect of torture.

Consistency is not "Bart"'s forte, needless to say.

Cheers,
 

burnspbesq [to our "but I play one on Tee Vee" Bart]:

And I'm curious: did you Shepardize the case? And if you did Shepardize it on LEXIS, did you notice the little red stop sign icon and the word "overruled" in bold type?

Didn't think so.


LOL.

Wouldn't matter. "Bart" is known in other realms (and even here) for citing dicta as holdings, and citing cases that went the opposite way of what he wants to argue. He's a cut'n'paste artist, and not about to let such arcane subtleties of legal research as Shepherdisation for remaining good law impinge on his "story".

Cheers,
 

"Shepardization". Ooops.
 

I just want to add to what PMS and pecunium said, as I've seen Bart and some others (elsewhere) do this constant trivialization of torture as "discomfort."

Look up "deep vein thrombosis" and/or "economy class syndrome." The fact that we even have the latter should tell you something about inherent risks of (in)activities that would not be literally described as "torture."

I believe the damage from this can be incremental and cumulative, (I'm not certain of long-term cumulative), but it could result in loss of lung function, fainting, and possibly death.

Restraint and immobilization can result in loss of circulation and nerve impingement. A friend of mine lost all sensation in one arm after an unusually protracted surgery, presumably due to nerve impingement in the shoulder that wasn't relieved for 8-10 hours. It never returned.

Any kind of restraint (e.g. shackles, ropes) which puts continuous pressure on some parts of the body, especially joints (wrists, ankles) can also have this effect. (Go find yourself some touchy-feely books on bondage and S&M - they'll tell you all the things that can go wrong.)

I also have some nerve damage at the outside edge of my hands. There's just enough sensation left in the pinkies that I can still type (barely).

Neither of these is necessarily painful when it happens, and may not even be immediately noticed.

I will also observe that interrogation is carried out before whatever might pass as a trial. I didn't read the entire law so may have this wrong, but it seems that the tribunal which enables the detention could very well be comprised of Bush's supporters: Laura and Barney.
 

"Allowing a President to pardon him or herself would not make any sense because it would moot the impeachment process."

That couldn't be the reason, because the Constitution already states that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment" (Art. II, Sec. 2; emphasis added).
 

Well, as a commentator on legal matters, Bart makes a very good retired Marine.

I sure as hell am not going to give the enemy a break which he does not give our soldiers.

And I'm sure you're not going to slice up those juicy oranges and bake them in a pie, either. Here's a hint: save your verbiose war stories for your grandkids.
 

JaO said...

Bart DePalma: I do not see a provision in the MCA barring a civil law suit seeking an injunction against future applications of a particular interrogation technique which is in violation of the definitions set forth in the MCA.

I do. The provision is black-letter law. Not only habeas actions are barred, but also any other actions. See the new paragraph (2) below...

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.


Good catch. I did not see the provision concerning "treatment" on my first read of that provision.

I agree with your take and withdraw my previous opinion.
 

pecunium said...

bart: Targets are provided medical care. Killing them will not achieve the objective of gaining information. As for the poor babies' swollen and sore feet, I could give less than a damn.

Tell that to dilawar, oh wait, he's dead. He wasn't being respectful enough to his interrogator, who (having chained him to a pipe, so he couldn't sit down) thumped him a few times in the legs.


Red herring.

Dilawar was allegedly chained to the ceiling and beaten, which caused his death.

What does this incident, for which several soldiers were criminally charged, have to do with the long time standing technique or any other approved technique?

This abuse would be forbidden as torture and murder under the MCA.

If you are an interrogator as you claim, then you should know the difference.
 

Bart said, "As for the poor babies' swollen and sore feet, I could give less than a damn."

Thanks, Bart, for finally admitting that, since that's the crux of all your legalistic verbiage; you really just don't care about these people. They, though not proven guilty, probably never to be prosecuted for a crime, should have to suffer at least as much as our soldiers, whose suffering they are in all likelihood in no way responsible for.
 

mrgumby2u said...

Bart said, "As for the poor babies' swollen and sore feet, I could give less than a damn."

Thanks, Bart, for finally admitting that, since that's the crux of all your legalistic verbiage; you really just don't care about these people. They, though not proven guilty, probably never to be prosecuted for a crime, should have to suffer at least as much as our soldiers, whose suffering they are in all likelihood in no way responsible for


No, I do not give half a damn for terrorists who violate every law of war and who use the mass murder of civilians to achieve the goal of imposing a totalitarian theocracy on the world.

This is not a game, this is the most total of wars.

Our enemy is a death cult which has repeatedly told us that they wish to murder hundreds of thousands of our citizens and are actively seeking WMD to achieve this goal.

How anyone can see 9/11, Bali, London, Madrid, Istanbul and the daily suicide mass murders of civilians in Iraq and Afghanistan and not believe that the enemy means what it says is beyond my understanding.

God may decide to forgive them their utter evil, but until they meet Allah their asses belong to us when we capture them.

Once the military has made a reasonable determination that a detainee is an unlawful enemy combatant, I would pursue every avenue short of the intentional infliction of severe pain, rape, hostage taking and murder to quickly break that prisoner and gain all the intelligence I could to roll up their network before they can butcher more of our people.

Whether you like them or not, these coercive techniques work and save lives. Reportedly, these techniques were the only thing which broke Khalid Sheik Muhammad and a number of his officers to reveal other al Qaeda and their plans to attack our people again.

There is no moral equivalence between techniques like Long Time Standing and the way the enemy beats, dismembers, burns and drags to death our captured soldiers or what was done by the Gestapo and KGB to their prisoners, so don't even begin to go there.

Take a good look at what al Qaeda did to our captured soldiers any time you feel the compunction to make any moral equivalence arguments...

http://mypetjawa.mu.nu/archives/183865.php

Frankly, I am impressed with the discipline our soldiers are showing by still taking prisoners of an enemy which commits such atrocities. During WWII, our soldiers often unofficially stopped taking Japanese and SS prisoners because they massacred our prisoners. The Japanese and SS don't even get close to the utter barbarity of al Qaeda.

Finally, the fact that an innocent civilian might be mistaken for an enemy which which dresses in civilian clothing, hides behind civilians and is trained to lie convincingly that they are civilians is not the fault of our troops, it is caused by yet another war crime committed by the enemy. The reason the Geneva Conventions limited the benefits of POWs to easily identifiable combatants was to spare civilians from being mistaken as combatants.
 

Bart: This is not a game, this is the most total of wars.

I try, really I do, to not see your posts. But this is so childish I can't believe you would write it.

Compare: Japan's attack on Pearl Harbor, with a nation's fleet and army behind it ready to take us on. Nine-one-one, with a band of international criminals aggrandizing themselves with the rhetoric of war but with no ability to follow up on their spectacular variation of the venerable tactic of stealing a vehicle and using it to destroy property. Face facts, al Qaeda never has been a threat to national security. Except, of course, to the extent that your PNAC partisans are willing pursue their long standing aims in the region even if it means shredding the Constitution under cover of the "war" on "terror".

Since I have taken your bait, let me address this: Once the military has made a reasonable determination... You continue to beg the question: Who decides a determination is "reasonable", by what standard, with what oversight? The President (your partisan today, but who knows about tomorrow?), with no requirement of "reasonable", and with no oversight. So when the Demoncrats (sic) get the White House the President can lock you up, determine you are an alien or otherwise subject to MCA treatment on any or no criteria, and neither you nor your partisans can do a damned thing about it, what then?

The answer, of course, will be more evasion and question begging; "it can't happen here," "no one would ever do such a thing," and on into the dark night of denial.
 

said...

["Bart"]: "As for the poor babies' swollen and sore feet, I could give less than a damn."

[mrgumby2u]: Thanks, Bart, for finally admitting that, since that's the crux of all your legalistic verbiage; you really just don't care about these people. They, though not proven guilty, probably never to be prosecuted for a crime, should have to suffer at least as much as our soldiers, whose suffering they are in all likelihood in no way responsible for

["Bart"]: No, I do not give half a damn for terrorists who violate every law of war and who use the mass murder of civilians to achieve the goal of imposing a totalitarian theocracy on the world.


"Bart" the lawyer believes in guilt by preznitdential decree. How very 12th century. BTW, when presented with the report that a majority of the Guantanamo detainees had no affiliation with al Qadea whatsoever, and that a substantial portion no association with even the Taliban, "Bart" just ignored the report (just like he's ignoring the paper on Iraqi deaths). It doesn't fit his Weltanshauung, you see.

This is not a game, this is the most total of wars.

Bovine scat. Horsepuckey. "Bart" the purported soldier thinks that the Terra-ists pose more danger to the country than the USSR did in its heydey, or Hitler's Nazi Germany allied with the Imperial Japanese military. IOW, a "bunch of ragheads" has "Bart" pi$$ing in his boots.

Our enemy is a death cult ...

So was Jim Jones. We didn't bomb nearby Suriname, and for good reason.

Really, when it comes down to it, "Bart" just loves his fascist, authoritarian gummint. Bet he won't like it nearly as much when it's the Dems back in power.

Cheers,
 

Arne,

Drop a line, would you, so I can join you at these other venues to which you so often refer?

At the risk of thread-hijacking, I'm watching the Scalia/Strossen debate, and he plays a lot better than I expected. Quite a pleasure to see him in action; pity Strossen's camera shows nothing but her hair, no eye contact, no real face contact. A shame. Meanwhile I'm looking forward to the transcript, in which I'm sure we'll find egregious fallacies a'plenty to smack down.
 

"Bart" DePalma sez:

How anyone can see 9/11, Bali, London, Madrid, Istanbul and the daily suicide mass murders of civilians in Iraq and Afghanistan and not believe that the enemy means what it says is beyond my understanding.

But ... but ... but ... Fearless Leader said we're winning the War on Terra, and thanks to his torturing detain... -- oops, I mean "illegal enemy combatants" -- and his wiretapping without warrants, we haven't had any Terra-ist attacks since 9/11. Nevermind that pesky State Department terrorism report that said terrorism was down, but then had to be revised upwards, oh, about 300% ... and then they stopped giving out these annual reports at all because as everyone knows, "good news is no news".

But I'd note that London Bridge still hasn't fallen. Which is more than I can say for plenty of countries in the 1940s, just to put things in perspective....

Cheers,
 

"Bart" DePalma offers his excuse for killing innocents:

Finally, the fact that an innocent civilian might be mistaken for an enemy which which dresses in civilian clothing, hides behind civilians and is trained to lie convincingly that they are civilians is not the fault of our troops, it is caused by yet another war crime committed by the enemy.

Shorter "Bart": "The debbil made me do it!"

Works like a charm in court for the psychotics that blame voices for instigating their actions ... they get declared mentally incompetent. But the "conservatives" like "Bart" would probably like to take away that defence. Ill-considered, IMNSHO, given their own situation.

Cheers,
 

Mark Field said:

....which says to the CIA and others (I'm looking directly at John Yoo), in essence, "Act at your peril. You have no immunity now and even a Presidential pardon is no defense against war crimes."

I have to think that such a campaign would put a damper on enthusiasm within the CIA.


Oh God yes, please do this. Please, please, please. Everyone who agrees with Mark and everyone who is a national democratic figure please do this. Please do it ASAP and before the election. Tell all of America exactly how you feel and exactly how you want to spend more time and effort tracking down and punishing those who protect us than you want to spend attacking those who want to kill our children.

Mark's strategy is original and brilliant. I heartily recommend it to a moonbats and elected democratic politicians. Please organize this immediately and start running ads listing your democratic politician supporters!!!!!!!!!

Sigh.... such a wonderful thought. Now I can sleep tonight.

Says the "Dog"
 

Says the "Dog":

Oh God yes, please do this. Please, please, please.

"Any port in a storm", eh? Sounds like "The Dog" is appealing to the Democrats for help (LOL). "The Dog" is hoping that this "All Terror, All The Time" stuff will carry the Republicans up and over for just one more election. That trick is getting pretty lame (as recent polls show). But "when all you've got's a hammer, everythign starts looking like a nail...."

It's pretty sad, really. What's truly unconscionable is the current Republican meme that the "War On Terra" is a "war" like no other (it is -- not counting the equally successful "war on drugs", etc. -- but not in that way...), and that it poses an existential threat to the U.S. like no other (including the Civil War, two World Wars, and the Cold War), and thus we need to take measures previously unheard of to "fight" it. Curiously (or conveniently?), these measures are also the very tools that dictators have used to establish and maintain power. This dishonesty from the Republicans ought, in any just world, be punished severely.

Cheers,
 

Oh God yes, please do this. Please, please, please. Everyone who agrees with Mark and everyone who is a national democratic figure please do this.

The louder a dog barks, the more he's bluffing.
 

This is not a game, this is the most total of wars.
_______________
More precisely, it is an _invitation_ to a most total of wars. For those who are experts at counterterrorism, what I gather, is that we choose to decline that invitation. It is always a bit farcical to think in terms of ‘rules of war’, but your intuition here, which I believe is shared by many in the populace at large, is probably on the mark, in the sense that we can think of terrorism as different than “war”. This sense, mostly unarticulated to date, may be why many (most) scholars of moral philosophy are comfortable with the proposition that ‘terrorism is never justified, _even if_ the cause is perceived to be just’.

I’m glad, in a way, that you post these feelings, honestly and openly, because so many other forums are so one-sided that its like groupthink.


Our enemy is a death cult
_______________
Perhaps this is what militates for caution, not boldness – which probably comes across as paradox to many.

We would probably agree that these groups are set-up like a religious _calling_, in many instances. Ideas are discredited, not destroyed. Of course, _believers_ can be destroyed, but more often than not, those who tried to “wipe out” such cults ended up, sadly, reinforcing them instead. This is also what is different about a counter response to terrorism than general warfare (or defensive warfare). If you believe your enemy is part of a ‘religious cult’, then you and yours are being tested (challenged) in the moral sphere, primarily. The violence is the tip of the iceberg (especially when it is not decisive violence, which even the most-organized terrorist groups do not possess, absent WMD).


Whether you like them or not, these coercive techniques work and save lives. Reportedly, these techniques were the only thing which broke Khalid Sheik Muhammad
-----------------------
I, for one, dispute the effectiveness of these techniques, and would prefer to rely on empirics as a way to reach consensus as much as anything (not the least of which because that usually makes for good law).

The truth is we paid for KSM ($25 million), we didn’t torture anyone to get him. Money has been effective too. He didn’t need torture to confess to 9-11. As with all political-violence, they are happy to talk about it. He gave up his involvement, free, to a journalist, if I believe what I read. (I’d bet one could make such statements admissible in court, and there would still be video tapes. If not, it would what a effective judicial coup that would be, to shut down their propaganda arm …).

As for his network, well, it is hard to know why other methods didn’t work. One thing that is true, I would regard as junk *any* statement from this President about the effectiveness of the CIA’s program. His willingness to play fast and loose with the classified facts is almost criminal, and would be so if we didn’t expect our Politicians to lie so much.

The ‘ticking bomb’ arguments have been largely debunked.

I read an Ignatieff piece in which he says that the Israeli Supreme Court, rather than being stripped, has set the rules so that no torture is permissible. If an experienced interrogator firmly believes that there is a ‘ticking bomb’ and chooses to use torture, that argument is never a permission, but it is allowed in court as mitigation. I have no idea how remedies are pursued through the Israeli courts on these matters.
 

Ya I think this is true..Someone already grabbed "Not In Our Name", more's the pity...
 

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