Balkinization  

Thursday, October 05, 2006

This Administration can't be broken, even with waterboarding

JB

The Washington Post notes that "[k]ey senators say Congress has outlawed one of the most notorious detainee interrogation techniques -- "waterboarding," in which a prisoner feels near drowning. But the White House will not go that far, saying it would be wrong to tell terrorists which practices they might face."

You might wonder why, if the Administration is willing to state that it doesn't torture and doesn't engage in cruel, inhuman and degrading treatment (as per the McCain Amendment and the MCA) and abides by Geneva Common Article 3 (also still law after the MCA) it won't simply come out and say it won't waterboard.

The Article continues:

Inside the CIA, waterboarding is cited as the technique that got Khalid Sheik Mohammed, the prime plotter of the Sept. 11, 2001, terrorist attacks, to begin to talk and provide information -- though "not all of it reliable," a former senior intelligence official said.

Waterboarding is variously characterized as a powerful tool and a symbol of excess in the nation's fight against terrorists. But just what is waterboarding, and where does it fit in the arsenal of coercive interrogation techniques?

On Jan. 21, 1968, The Washington Post published a front-page photograph of a U.S. soldier supervising the questioning of a captured North Vietnamese soldier who is being held down as water was poured on his face while his nose and mouth were covered by a cloth. The picture, taken four days earlier near Da Nang, had a caption that said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk."

The article said the practice was "fairly common" in part because "those who practice it say it combines the advantages of being unpleasant enough to make people talk while still not causing permanent injury."

The picture reportedly led to an Army investigation.

Twenty-one years earlier, in 1947, the United States charged a Japanese officer, Yukio Asano, with war crimes for carrying out another form of waterboarding on a U.S. civilian. The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.

"Asano was sentenced to 15 years of hard labor," Sen. Edward M. Kennedy (D-Mass.) told his colleagues last Thursday during the debate on military commissions legislation. "We punished people with 15 years of hard labor when waterboarding was used against Americans in World War II," he said.

A CIA interrogation training manual declassified 12 years ago, "KUBARK Counterintelligence Interrogation -- July 1963," outlined a procedure similar to waterboarding. Subjects were suspended in tanks of water wearing blackout masks that allowed for breathing. Within hours, the subjects felt tension and so-called environmental anxiety. "Providing relief for growing discomfort, the questioner assumes a benevolent role," the manual states.

The KUBARK manual was the product of more than a decade of research and testing, refining lessons learned from the Korean War, where U.S. airmen were subjected to a new type of "touchless torture" until they confessed to a bogus plan to use biological weapons against the North Koreans.

Used to train new interrogators, the handbook presented "basic information about coercive techniques available for use in the interrogation situation." When it comes to torture, however, the handbook advised that "the threat to inflict pain . . . can trigger fears more damaging than the immediate sensation of pain."

In the post-Vietnam period, the Navy SEALs and some Army Special Forces used a form of waterboarding with trainees to prepare them to resist interrogation if captured. The waterboarding proved so successful in breaking their will, says one former Navy captain familiar with the practice, "they stopped using it because it hurt morale."

After the Sept. 11, 2001, terror attacks, the interrogation world changed. Low-level Taliban and Arab fighters captured in Afghanistan provided little information, the former intelligence official said. When higher-level al-Qaeda operatives were captured, CIA interrogators sought authority to use more coercive methods.

These were cleared not only at the White House but also by the Justice Department and briefed to senior congressional officials, according to a statement released last month by the Office of the Director of National Intelligence. Waterboarding was one of the approved techniques.

When questions began to be raised last year about the handling of high-level detainees and Congress passed legislation barring torture, the handful of CIA interrogators and senior officials who authorized their actions became concerned that they might lose government support.

Passage last month of military commissions legislation provided retroactive legal protection to those who carried out waterboarding and other coercive interrogation techniques.


So let's see: when waterboarding was used on our own troops, it was considered a war crime. The MCA retroactively protects CIA officials who used it. And senators who supported the MCA now state that the new law forbids it. But the Administration still won't say that it won't engage in the practice. It still won't state publicly that it won't violate the law.

Nothing, it seems, can make it talk-- about waterboarding.


Comments:

Except....
 

Very interesting, but the sensory-deprivation experiment described in the text has nothing to do with waterboarding, except "water." They are practically opposites.

David Corn ran some pictures of Khmer Rouge waterboards a few days ago. The regimes we're identifying ourselves with becomes ever more nauseating.
 

It does have some logic ... Obviously, the "I don't want to hint the enemy" argument is not such, it's simply an excuse, a way of avoiding having to say that you will use the technique (or, implicitly, that have used it in the past). Why? Here's the logic: because this Administration fears that one day the Supreme Court may consider that the new law/ waterboarding are unconstitutional/a war crime. It's like a former dictator that will never admit the atrocities he has commited, even after an amnesty/pardon: he knows that there's a chance (look at Pinochet and Videla, in Chile and Argentina)that in the future a court will repeal the amnesty/pardon.
 

Professor Balkin:

To start, we need to get the facts right. Senator Kennedy and the WP are being misleading in claiming that Yukio Asano was sentenced to 15 years prison for water boarding.

Asano was a Japanese officer tasked with "interpreting" (read interrogate through torture) Allied POWs at Camp Kokuro #3. He was accused of a wide range of torture of POWs including beatings, burnings and something termed "water torture" as well as starving the POWs by stealing Red Cross packages.

http://socrates.berkeley.edu/~warcrime/
Japan/Yokohama/Reviews/
Yokohama_Review_Asano.htm

http://home.comcast.net/~winjerd/
IMTFE_1.htm

Furthermore, the WP claims that this technique they analogize to water boarding was performed on an American "civilian." However, Asano was convicted of crimes against POWs.

Given that the WP did not bother to do the 5 minute internet search I just preformed to verify the story on Asano which was apparently fed to them, I do not entirely trust their description of the "water torture" itself.

However, even taking the WP article at face value, the laws of war prohibit and the US does not use coercive interrogation techniques against lawful enemy combatants (POWs) or civilian noncombatants. However, unlawful combatants do not share the rights of lawful combatants or civilian non combatants.

Historically, unlawful enemy combatants have been legally executed after summary battlefield proceedings. Thus, the lesser sanction of causing temporary panic through coercive interrogation techniques surely cannot be illegal.

If we want to discuss as a policy matter whether water boarding should be used against unlawful enemy combatants and under what circumstances, such a discussion would be very interesting. However, the technique does not appear to be illegal.

I am personally of mixed feelings on the subject. The method appears to be very effective, being used to break and then roll up much of the al Qaeda high command. Reportedly, this was the only technique which broke Khalid Sheik Muhammad. However, I can also see where it can be abused on lesser subjects.
 

However, I can also see where it can be abused on lesser subjects.

And if unlawful combatants aren't covered by the Geneva Conventions for waterboarding, if the waterboarding doesn't work, we should think about burning them at the stake. Or tearing them limb from limb. Or something.
 

Historically, unlawful enemy combatants have been legally executed after summary battlefield proceedings. Thus, the lesser sanction of causing temporary panic through coercive interrogation techniques surely cannot be illegal.

Just plain stupidity. So we could rape the prisoners before shooting them?

If "severe mental pain" means anything, and as statutory language we must assume so, then it includes the sensation of being waterboarded. It's torture.
 

Bart DePalma: If we want to discuss as a policy matter whether water boarding should be used against unlawful enemy combatants and under what circumstances, such a discussion would be very interesting. However, the technique does not appear to be illegal.

That assertion makes JB's point for him.

Even though Sen. McCain states on-the-record that the language of his legislative compromise certainly forbids waterboarding, Bart's argument is an example of why McCain's own interpretation can't be trusted. DOJ could favor Bart's permissive interpretation of the law.

I tend to think McCain's interpretation is correct. But there is no process to ensure that it would not be ignored by the administration -- whose lawyers have a record of creatively interpreting the law to allow anything for which they cannot be held accountable in court.
 

"You might wonder why, if the Administration is willing to state that it doesn't torture and doesn't engage in cruel, inhuman and degrading treatment (as per the McCain Amendment and the MCA) and abides by Geneva Common Article 3 (also still law after the MCA) it won't simply come out and say it won't waterboard."

I think the administration is hoping that terrorists will talk for fear that they will be waterboarded, even if the administration doesn't want to do the waterboarding itself. So there's one moral question about how we should treat our enemies, but another question about how we should threaten to treat our enemies. And the administration wants to be able to threaten to waterboard. I'm of course not at all sure that's a good thing--for instance, we could face reprisals for things the bad guys only think we do--but it's a relevant distinction.
 

The Heretik said...

Bart: However, I can also see where it can be abused on lesser subjects.

And if unlawful combatants aren't covered by the Geneva Conventions for waterboarding, if the waterboarding doesn't work, we should think about burning them at the stake. Or tearing them limb from limb. Or something.


Hardly. The MCA and the Torture Convention before it defined torture as the intentional infliction of severe pain. The line has to be drawn somewhere and I am comfortable with that definition.
 

Anderson said...

Bart: Historically, unlawful enemy combatants have been legally executed after summary battlefield proceedings. Thus, the lesser sanction of causing temporary panic through coercive interrogation techniques surely cannot be illegal.

Just plain stupidity. So we could rape the prisoners before shooting them?


Of course not. See my above discussion on the limits imposed by the MCA.

If "severe mental pain" means anything, and as statutory language we must assume so, then it includes the sensation of being waterboarded. It's torture.

We have to disagree. Panicking a subject for two minutes is not "severe pain" in my opinion. I don't consider what we do to our own soldiers in SERE training to be "torture."

Of course, others with lesser thresholds of pain may disagree.
 

jao:

Bart's argument is an example of why McCain's own interpretation can't be trusted. DOJ could favor Bart's permissive interpretation of the law.

If Congress wanted to prohibit water boarding, they could have easily done so by barring techniques which simulate drowning. Instead, they simply ratified the prior definition of torture as severe pain which we amended to the Torture Convention.

Mr. McCain was forced to back down on what he demanded to be prohibited and then started spinning for the press.
 

"You might wonder why, if the Administration is willing to state that it doesn't torture and doesn't engage in cruel, inhuman and degrading treatment (as per the McCain Amendment and the MCA) and abides by Geneva Common Article 3 (also still law after the MCA) it won't simply come out and say it won't waterboard."

You cannot tell the enemy what he will or not face during interrogation. Uncertainty and disorientation are the keys to a successful interrogation. Often, imagined fears are worse than the real thing and will cause the subject to break.

Both we and the enemy know this which is why we train our forces to resist techniques we expect the enemy to perform. It is exactly for this reason that you should not tell the enemy how to prepare for interrogation by disclosing our methods to him.
 

I don't consider what we do to our own soldiers in SERE training to be "torture."

We do NOT repeatedly and involuntarily waterboard our own soldiers. You are a liar if you suggest otherwise.

"Severe *mental* pain and suffering" obviously includes repeatedly inducing the sensation of drowning. No one outside the SS or the KGB would believe otherwise.

Do you really have no other place on the Internet to be despicable?
 

We do NOT repeatedly and involuntarily waterboard our own soldiers. You are a liar if you suggest otherwise.

Just to reinforce your point, according to the quoted article, "The waterboarding proved so successful in breaking their will, says one former Navy captain familiar with the practice, 'they stopped using it because it hurt morale.'" It appears that we not only don't waterboard our soldiers involuntarily, we don't do it at all any more precisely because it's too harmful.

Do you really have no other place on the Internet to be despicable?

He used to troll at Glenn Greenwald's site. That's a more free flowing environment where such behavior is easier to ignore. I'm confident most readers here quickly figure out the game.
 

Field is more temperate than I'm managing to be. This "let's act like Nazis but of course you can't *say* we're doing that" shtick is obviously wearing at my nerves.

I mean, what the HELL???

More bourbon, please, to deaden the pain of creeping tyranny.
 

And ANOTHER thing:

The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.

That's not at the website that this DePalma character cites. Evidently, Pincus had some source that had more facts about the case than DePalma found.

And YET, based on having found his web page, DePalma's reaction is "hey, I know more than whoever Pincus talked to, so never mind the article."
 

Anderson said...

Bart: I don't consider what we do to our own soldiers in SERE training to be "torture."

We do NOT repeatedly and involuntarily waterboard our own soldiers. You are a liar if you suggest otherwise.


What does the fact that SERE is theoretically voluntary (military members wash out of pilot school or special ops if they opt out) have to do with the fact that they undergo the procedure or the nature of the procedure.

"Severe *mental* pain and suffering" obviously includes repeatedly inducing the sensation of drowning. No one outside the SS or the KGB would believe otherwise.

That is not true. There is a significant debate on that subject and calling those who have a different opinion nazis and communists is not an argument.
 

Anderson said...

That's not at the website that this DePalma character cites. Evidently, Pincus had some source that had more facts about the case than DePalma found.

I challenged the misleading and false statement that the Japanese officer was convicted of the "war crime" of water boarding and the statement that the subject of the "water torture" was a civilian since the officer was accused and convicted of torturing POWs.

Given I discovered that these opening statements were incorrect in about 5 minutes on Google, I suspect that Pincus was simply regurgitating information given to him by Senator Kennedy's office without double checking it. The problems with the accuracy of the initial statements also does not give me great confidence in the accuracy of the description of the "water torture."

Anyone with a background in the military or the law knows that the press has very little background in either and routinely mis-reports the facts in these areas.
 

Mr. DePalma, there is "significant debate" on whether the world is flat, whether the Holocaust never happened, whether the occupation of Iraq has gone swimmingly.

If you want to argue for wicked beliefs, fine. Anything to help the rest of us identify you for what you really are.

What does the fact that SERE is theoretically voluntary (military members wash out of pilot school or special ops if they opt out) have to do with the fact that they undergo the procedure

That, of course, was not the point. No one disputes that they "undergo the procedure." They do not undergo the procedure in the same manner that it is applied to our prisoners -- involuntarily, repeatedly, and with hostile intent.

Or are we to suppose you don't know the difference between rape and consensual intercourse? Theft and gift? Jail and "Just Visiting"?

The utter, utter poverty of your arguments, together with your tenacity in maintaining them, speaks volumes.
 

When waterboarding is outlawed, only outlaws will have waterboards. (And none of us will be safe, right?)
 

Both we and the enemy know this which is why we train our forces to resist techniques we expect the enemy to perform. It is exactly for this reason that you should not tell the enemy how to prepare for interrogation by disclosing our methods to him. -- B. DePalma.
-----

This completely misses the point. The correct phrasing would be that the US military trains personnel in preparation for capture by an enemy which VIOLATES the Geneva Conventions, particularly Common Article III, by torturing captured U.S. personnel.

Mr. Palma appears to argue that simply because the U.S. trains personnel to resist UNLAWFUL torture techniques by a potential enemy, these techniques somehow become LAWFUL. This makes no sense.

Whether or not the U.S. military plans or prepares personnel for the unlawful actions of an enemy does not have any bearing on the issue. I will note that even the U.S. Solicitor General did not make this claim in oral argument in Hamdan v. Rumsfeld. Instead the Solicitor simply argued that al Qaeda suspects are not protected under Common Article III because of the "international" character of the al Qaeda organization, reading straight from the Conventions. This reading of the Conventions was dismissed by the majority of the Court in its opinion by Justice Stevens.

As far as I understand, Hamdan v. Rumsfeld controls as US law regarding the inclusion of Guantanamo prisoners under the protections of Common Article III. And Common Article III clearly does not allow for water-boarding or other similar types of torture, coercion and ill treatment.

Am I missing something here?
 

Historically, unlawful enemy combatants have been legally executed after summary battlefield proceedings. Thus, the lesser sanction of causing temporary panic through coercive interrogation techniques surely cannot be illegal. -- B. DePalma.
---

Quick note. As I read Hamdan v. Rumsfeld, the Supreme Court rejected the designation of "unlawful enemy combatant" to al Qaeda suspects as Mr. DePalma and the Administration has defined the term, specifically in the sense that prisoners so designated are not entitled to any Geneva Conventions protections.

I also believe that in Hamdi v. Rumsfeld (2004), Justice O'Connor, writing for the majority, ruled Hamdi, a U.S. born man, was entitled to habeus corpus and the opportunity to present facts and rebuttal to question his continued detention. The majority held that the U.S. under the laws of war had the right to detain Hamdi for the duration of al Qaeda conflict as a POW so as to ensure he would not re-enter the conflict, contingent upon a showing that Hamdi was in fact a combatant and not an innocent captured in Afghanistan by mistake. The significance of this is that in both Hamdi and Hamdan, the Court refused to accept the Administration's definition of "unlawful enemy combatant" as a person ineligible for Geneva Conventions protections, and therefore, someone whom the U.S. could torture with legal impunity.

Am I missing something here?
 

As a conclusory note.

What makes this swath of issues rather difficult to sort out is that the Administration, and now Congress, have recently proceeded in ways that are entirely contrary to the specific rulings and instructions of the Supreme Court in Hamdan v. Rumsfeld, Rasul v. Bush and Hamdi v. Rumsfeld.

As an example, the procedures just approved by Congress for military tribunals are nearly identical in key ways to those the court rejected in Hamdan as being incongruent to accepted judicial procedures under the laws of war to ensure a fair trial.

The new law also prohibits a defendant from raising as a defense his rights under any part of the Geneva Conventions. Since the Supreme Court has already ruled that defendants automatically have rights under Common Article III, I cannot understand how Congress can unilaterally deprive them of these rights by statute. This looks like a very obvious end-around to the Court's ruling in Hamdan and seems to raise some huge interpretational, supremacy and jurisdictional issues.

Lastly, the suspension of the writ, without a finding of facts showing Congress has met its evidentiary burden under Article One, section nine seems untenable and yet another "papering over" of the severe flaws in the military tribunals the Court noted in Hamdan. In Hamdan, Justices Stevens, Souter and Kennedy repeatedly hammered the US Solicitor over the key issue of whether the US was actually suspending the writ or not. In doing so, all three stated that if the US was actually asserting a suspension of the writ, it would then be incumbent on the US to make an affirmative showing that Congress had met their evidentiary burden. Since, at that time, Congress had not expressly suspended the writ, the Court did not rule on whether the evidentiary burden had been met. Presumably, this question will be at the forefront of the Court's analysis of the new law when they take it up.

Again, am I missing something here?
 

Historically, unlawful enemy combatants have been legally executed after summary battlefield proceedings. Thus, the lesser sanction of causing temporary panic through coercive interrogation techniques surely cannot be illegal. -- B. DePalma.
---
Justice Stevens' majority opinion and the concurrence by Justice Kennedy in Hamdan discuss in detail the issue of "battlefield exigencies" Mr. DePalma cites above, which follows in some respects the line of argument made by Justice Thomas in his dissent.

In short, the Court rejected the "battlefield exigencies" argument on a purely factual basis, ie. that nature of the al Qaeda conflict and capture and detention of suspects is completely unlike a situation where hastily assembled military tribunals must dispense trials and sentences very quickly and summarily on the battlefront itself.

In doing so, the Court stated the obvious: captured al Qaeda suspects have been quickly incapacitated and brought to secure locations, including Guantanamo Bay, where they have been effectively and indefinitely neutralized from posing any threat to US personnel or the US effort to contain al Qaeda itself.

As such, Mr. DePalma's claim above goes far beyond what the Administration itself has posited. The US has not argued that, "since we have a right to summarily execute these combatants, the harm to them from torture must be legal as well since we are not killing them." There exists no basis for such an argument under any actual scenario nor within the arena the Court has covered in Hamdan and previous decisions. In fact, the Court has gone exactly the opposite way by rejecting the very premise that al Qaeda suspects are "unlawful combatants" which the US may summarily execute or torture with legal impunity and in disregard to the Geneva Conventions or laws of war.

So I guess I just don't get it.
 

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