Balkinization  

Thursday, April 12, 2007

Torture, Secrecy and the Bush Administration

Scott Horton

It’s a great honor for me to share the platform this morning with Dana Priest and Walter Pincus, two journalists who practice at the pinnacle of their craft. I am an avid reader of the Washington Post, which really is at the cutting edge of national security reporting. Now it occasionally happens that I see something in its news pages or an editorial that leaves me unhappy. But when that happens, I pause and remember that this is the paper that brings me Dana Priest and Walter Pincus, and I suddenly feel much more tolerant. Their contribution is profound: America would be less of a democracy without them.

Others here this morning will be expanding on specific issues concerning secrecy and the courts. I want to give a bit of pre-constitutional history, and share with you the story of John Lilburne, an Englishman born in the early 1600s because his story—the story of an agitator who directly challenged the English legal system—has a great deal to tell us about the issues we’re facing today. Lilburne’s story explains why these matters—torture and secrecy—were not issues to the Founding Fathers, and it helps us understand the true nature of a government which, like the current administration, thrives in that matrix of torture and secrecy.

So much of what has happened over the last six years seems a repetition of events drawn from English history, from the turbulent years from the Civil War to the Glorious Revolution - this could be said of the struggle over habeas corpus, which was right at the center of the conflict between Parliament and king, as seen in the Five Knights case of 1627 or the Shipmaster’s tax case of 1637. But the notion of secret legal proceedings, closed courts and the use of secret evidence also characterize that period of history. Before the English Civil War, court proceedings were frequently closed, and one of the principles of fair process introduced in the Commonwealth - it seems to have been an initiative of the solicitor general, John Cooke - was the notion that no court should conduct its hearings behind closed doors, and neither should any evidence be taken which could not be shared with the public and presented to the defendant and the jury.

The key case for this notion involved a man commonly called “Freeborn John,” or John Lilburne. He was a person of little formal education who became a firebrand pamphleteer among the Puritans in the years of the Civil War. He had republican sentiments, but more to the point he was a sharp critic of the king’s justice - writing constantly of the aspects which were, well, unjust. He was particularly outraged by the use of the king’s courts to persecute dissenters, as the Anglicans called them – though at the time this would be a changing blend of Puritans, Calvinists, Baptists and Quakers; not to mention the “terrorists” of the day, the Catholics. Lilburne had been convicted in the Star Chamber in 1638 on a charge of importation and dissemination of unregistered religious tracts. He wrote a compelling account of his treatment – he had been imprisoned for refusing to answer questions and then flogged, pilloried and gagged – but he also described the use of coercive interrogation techniques to extract a confession, the denial of rights of confrontation, the fact that his judges were all political figures placed there to do their king’s bidding – the Star Chamber, you see, was to Lilburne’s age what the Military Commission is to ours.

His account was an instant bestseller and provided much of the impetus for the abolition of the Star Chamber by the Long Parliament in 1641. As Uncle Tom’s Cabin was to abolition, Liburne’s book was to habeas corpus and the Star Chamber. Lilburne served with distinction as an officer during the Civil War, and afterwards his advocacy of Republican virtues caused Oliver Cromwell a bit of discomfort, and at length Cromwell decided to silence Lilburne by charging him with treason. The trial convened in October 1649, which is to say just months after the second Civil War had been successfully concluded for the Parliamentary forces.

This was in effect the second significant trial for the Commonwealth after the trial of King Charles himself in January. Lilburne was a popular figure in London and was well aware of that fact. When the court proceedings commenced behind closed doors in the Painted Chamber of Westminster, Lilburne opened his answer to the charges read in court with these famous words: “The first fundamental liberty of an Englishman is that all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred.” Lilburne was raising a direct challenge to the reputation of the Commonwealth courts – asking whether one of the most abusive of the practices of justice under the Stuart monarchs would be continued. The court fully understood this and directed that the doors be opened, in order that “all the world may know with what candour and justice the court does proceed against you.”

In the balance of that remarkable case, Lilburne established a number of other principles. The prisoner in the dock was to be treated with dignity and respect, not dragged before the court in manacles and an orange jumpsuit. There were to be no ex parte communications between the counsel and the court. He was to have a right to confront all evidence against him (that is, there could be no secret evidence), and the public also was to be allowed to hear it, to form its own opinion of the quality of justice dispensed by the court. He was guaranteed the right of counsel, and for the first time, counsel were permitted to participate in the presentation of evidence for the defense as well.

The fairness of the proceedings had its limit. The judge charged the jury that they must convict, saying “never was the like treason hatched in England.” But the vigor of Lilburne’s defense was impressive and the jury returned a verdict of acquittal. (To this day, some attribute the acquittal to Judge Keble’s refusal of the jurors’ request of a “butt of sack,” which is to say, a very large quantity of fortified wine, as a pre-deliberation refreshment).

The Lilburne case sums up the most significant of what may be called the “Commonwealth reforms” of criminal procedure – one of the few legacies of the revolution to survive the restoration of the monarchy.

Secrecy was what the Roundheads found most odious about the Stuart monarchs’ justice. Certainly unjust practices accompanied some of our Puritan forefathers to this country; we can’t forget the Salem witch trials, for instance. But so too, did a healthy contempt for the abuses practiced by the Stuart monarchs, starting with the notions of torture and secret courts with secret evidence. The contempt was reciprocal of course – they say that King Charles’ lip would curl at the very mention of the word “Massachusetts,” and seven of the ten members of the first graduating class of Harvard – the class of 1642 – returned to England to enlist in the Model Army and fight against the King. The practice of secret courts. The use of torture to secure confessions. The receipt of secret evidence. The exclusion of the public from proceedings. The offering of evidence in the form of summaries delivered to the judges, without the defendant being able to confront the evidence or conduct a cross-examination. These practices were the definition of tyrannical injustice to the Puritan fathers and the Founding Fathers. We thought them long banished, indeed, a hundred years and more before our own revolution. And now suddenly here they are again.

Secrecy has reemerged just as torture has made its comeback, being justified on the public stage, by government officials for the first time since the famous gathering at the Inns of Court in 1629 at which the judges declared “upon their and their nation’s honor” that torture was not permitted by the common law.

The two fit together, hand in glove: torture and secrecy. Torture and secrecy. Where one is used, the other is indispensable.

Torture is no longer a tool of statecraft. Today it is a tool of criminals, though sometimes of criminals purporting to conduct the affairs of state. Having resorted to these “dark arts,” to quote Dick Cheney, the torturers now have the dilemma faced so frequently by criminals. They seek to cover it up. And so the path flows from torture to secrecy, the twin dark stars of the tyrannical state.

If we look quickly at the proceedings that held the world’s attention down in Gitmo over the last two weeks, we see what the secrecy is all about.

When the Combat Status Review Tribunal process commenced, the Pentagon told us that the proceedings would not be open to the public. Instead, it said, a transcript would be offered up to the public a few days later, giving the Pentagon an opportunity to redact “classified national security” information from the transcripts. Pete Yost of the Associated Press gave me a ring just as this came out and asked: what do you suppose they think is going to require censoring? I said the answer is clear based on submissions the Department of Justice has made in four or five cases: they will take the position that any evidence of torture must be censored or expunged, because the testimony would disclose the specific torture techniques which have been applied, and that would divulge highly classified national security data. Why do you think the DVDs of the treatment of Jose Padilla, all two dozen copies, mysteriously disappeared? Why, as Colonel Couch recently told the Wall Street Journal’s Jess Bravin, did the recording devices inexplicably malfunction whenever torture incidents occurred? Yes. Why indeed. Of course, I was relying not only on what was said and done in Padilla, El-Masri, Arar and other cases, but also on Terry Gilliam’s movie, “Brazil,” in which all of this morally deviant thinking is taken to its logical conclusion. What the Bush Administration has created in Gitmo is “Brazil,” minus, of course, any pretense of humor.

Now we have the first two transcripts, and the results are exactly that. The torture is cut out. The case of al-Nashiri is particularly striking:

PRESIDENT (of the tribunal): Please describe the methods that were used.

DETAINEE: (CENSORED) What else do I want to say? (CENSORED) There were doing so many things. What else did they did? (CENSORED) After that another method of torture began. (CENSORED) They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And if I didn’t replay what I heard, he used to (CENSORED).

Now let’s consider – would there be any need to censor the allegations unless they are true? No. Indeed, the fact that they are censored should be taken as an admission. No meaningful effort is made to refute any of the detainee’s contentions. No records are spread out showing that he was not tortured. Why might that be?

And the second case for secrecy we see in the trial of David Hicks, which follows a pattern established with the John Walker Lindh case. It came to a plea bargain in the end, and a strong focus on silencing the witness. In particular, he was to be gagged as to everything that was done to him while he was in U.S. custody for a period of one year, which is to say, until the Australian elections are past. The plea bargain, it appears, was negotiated by Susan J. Crawford, a protégée of Vice President Cheney, and Cheney had only six weeks earlier visited Australian Prime Minister John Howard downunder. According to accounts of their meeting published at the time in the Australian press, at the top of Howard’s agenda was an urgent plea to bring the Hicks case to a speedy conclusion that would allow him to serve a brief sentence in Australia. Crawford delivered exactly what was requested.

There is a common theme to these cases. Secrecy is not invoked to protect military or legitimate state security confidences. It is invoked for nakedly political reasons, or darker and still more likely, to obscure crimes and avoid the creation of court records which would document them.

On April 27, 1961, John F. Kennedy gave a speech in the Waldorf-Astoria to the American Newspaper Association. “The very word ‘secrecy’ is repugnant in a free and open society;” Kennedy said “and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it. Even today, there is little value in opposing the threat of a closed society by imitating its arbitrary restrictions. Even today, there is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment. That I do not intend to permit to the extent that it is in my control.”

I believe that the moment - the day of “official censorship and concealment” - that Kennedy foresaw is drawing near, if it is not already upon us in America today. The moment has crept upon us by stealth, as a result of decisions taken at the highest level in government. These decisions have been made behind closed doors, with no public discussion – and indeed with a concerted effort to misdirect the public as to the gravity of the changes in policy which have been undertaken. They have led to a dramatic expansion of Government action without oversight, which is to say on the basis of a decision by the President unchecked by courts and Congress, and to a shrinkage of individual freedom.

We have a duty to posterity, and that is to bear witness to these events. We must document them carefully. We must act to avoid the destruction of valuable evidence – and recognize, as we have already seen, that it is in the character of those who commit crimes to destroy the evidence of their misdeeds. In this way we lay the path for the justice which will in good time be meted out to those who betrayed a nation’s trust. For I believe, like the Puritans, in the certainty that justice will triumph and that wrongdoers will be held to account, though I am not so foolish as to think that this will happen soon. Still, the time is coming, as John Milton wrote, that sun part the clouds which tyrants muster,

that good men may enjoy the freedom which they merit,
and the bad the curb which they need.

Remarks delivered at New York University School of Law's Conference on Government and Secrecy, April 12, 2006.

Comments:

Professor Horton,

This portion of your argument is specious, and I will take each assertion in turn.

You state, "Now let’s consider – would there be any need to censor the allegations unless they are true? No. Indeed, the fact that they are censored should be taken as an admission."

There is one particular reason to censor it. The administration and the CIA have made it a point that they don't want to reveal exactly what methods are used and what are not--so that the enemy does not know what to expect. He could have suffered from any number of techniques that are hardly torture. Now, I obviously can't disprove the assertion that he was. I am merely presenting another potential reason.

It is logically fallacious to argue that because his statements were censored, they must be true. The only logical inference that can be drawn is that he stated something worth being classified. It does not prove that he was in fact tortured (as in beat up or something similar).


You then state, "No meaningful effort is made to refute any of the detainee’s contentions. No records are spread out showing that he was not tortured. Why might that be?"

In the CSRT, since when and why, is it the government's responsibility to respond to a detainee's allegations? That isn't the point of the CSRT. You can't logically or reasonably take a lack of response by the government in this proceeding as evidence of the truth of the statements.


I just look forward to the day when people apply half of the scrutiny to potential terrorists that they do to our government.

I'm not saying give the government a free pass, but is it really necessary (or even reasonable) to repeat as true, and without any similar scrutiny, the statements by these detainees?
 

'[T]he truth is so precious that she must always be accompanied by a bodyguard of lies'

Churchill to Stalin at Teheran, referring to ULTRA, ENIGMA and the allies ability to read Hitler's mail and preparations for D-DAY and the allied assault on Fortress Europe and invasion of Normandy, not methods of torture. Churchill, who had been a prisoner of the Boers, would be apalled.


NEW YORK & LONDON, NOVEMBER 11TH: Two months since September 11th, Winston Churchill remains the dominant historical reference, his quotations on every lip, while cynics take turns comparing him (and Chamberlain) to George W. Bush and Bill Clinton.

Comparing the current President to Churchill, The Economist admitted that Bush is "a super-fit teetotaler while Churchill was a cigar-smoking puffball whose daily alcohol regime included [inaccuracies omitted]. And yet Mr. Bush is marching into battle against terrorism with Churchill's ghost by his side. He has a bronze bust in the Oval Office and lards his speeches with Churchillian-sounding phrases.

"Karl Rove, Mr. Bush's guiding hand, recently put up a poster of Churchill in the Old Executive Office Building. Donald Rumsfeld invoked Churchill in pouring scorn on people who doubt America's will [and quotes WSC's phrase that] 'the truth is so precious that she must always be accompanied by a bodyguard of lies'.... The biggest reason for invoking Churchill, of course, is that he won his war. But Mr. Bush and his men should not forget that, for all their gratitude, the British people then kicked him out of his job."

 

I meant to say well done. Well said.

And who will rid us of these absurd arguments and the idiots who make them?
 

Has anyone seen Someone and Bart in the same room together?

Reports have made it clear that Qaeda members *expect* to be tortured; what surprises them is the rapport-building technique used effectively by the FBI, and (Mark Bowden reports) by the task force that nailed Zarqawi.

As for the CSRT, if they're basing their determination on evidence presented by the gov't, and the accused says that the evidence was obtained by torture, then of course the gov't has an obligation to show otherwise. The CSRT is bound by the UN Convention Against Torture.

So whether or not Someone = Bart, their reasoning skills are similar ... alas.
 

is there an audio recording available of this event? thank you.
 

Professor Horton:

I have nothing to add to someone's apt critique of the assumption that censorship of interrogation techniques is tantamount to admitting torture. However, this speech cries out for further response.

The comparison of a Combatant Status Review Tribunal (CSRT) or a Military Commission with the John Lilburne case is absurd.

John Lilburne plead: “The first fundamental liberty of an Englishman is that all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred.”

A CSRT is not a court trying a citizen for sedition or treason. Rather, it provides the status hearing to foreign enemy captures required by the Geneva Conventions and the MCA. There were no status hearings in Lilburne's time.

If a foreign unlawful enemy belligerent is actually tried for war crimes before a military commission, he has never enjoyed constitutional due rights under the 5th and 6th Amendments. See Ex Parte Qurin. Lilburne was arguing for the rights of Englishmen facing trial, not for foreign unlawful enemy combatants. Furthermore, unlawful enemy belligerents were usually summarily executed without the benefit of a military commission in Lilburne's time.

Nor are the foreign enemy captures being flogged as Lilburne suffered.

(As an aside, Lilburne's description of flogging provides a useful measure of what true torture is about - the intentional infliction of severe pain - and provides a useful contrast which shows that disorienting prisoners through sleep deprivation, loud noises, lights, temperature changes and even the 1-2 minute panic of waterboarding hardly rises to the level of torture.)

Horton: And the second case for secrecy we see in the trial of David Hicks, which follows a pattern established with the John Walker Lindh case. It came to a plea bargain in the end, and a strong focus on silencing the witness.

How can a plea bargain releasing Hicks to the Australians for a short imprisonment which will almost certainly be followed by a ghost written book and a media tour in time for our 2008 elections possibly be considered "a strong focus on silencing the witness?"
 

Well said.

I would add that secrecy in _sentencing_ is often overlooked. Since Williams v. NY, (US '49) secret evidence has been used in criminal sentencing, especially during the time of judge sentencing and including capital cases. Some courts have held that the Due Process clause is the only safeguard against the admission of faulty information at this stage -- the Confrontation Clause does not apply, some courts have held (e.g., the 5th in U.S. v. Sherman Fields, a capital case). This is a split, however -- the 11th Cir. has held that Apprendi and Crawford taken together require a confrontation right at sentencing.priammb
 

Secrecy invites abuse. It's really that simple. And, of course, abuse leads to more secrecy, frantic secrecy to conceal just what has taken place.

The Bush Administration, thinking that abuses of this kind were necessary, cloaked them in secrecy and allowed them to flourish. Now it is caught in its own trap, desparate to conceal what it has been up to, willing even to let supposedly deadly terrorists go on the condition that they keep quiet.

I expect the remainder of the last two years of the Bush Administration to consist mostly of ever more desparate attempts to conceal what it was up to for the first six years.
 

John Lilburne is one of the most fascinating characters in history. Leonard Levy tells his story in The Origins of the Fifth Amendment. There's also a recent biography by Pauline Gregg, Free-Born John.

There is one particular reason to censor it. The administration and the CIA have made it a point that they don't want to reveal exactly what methods are used and what are not--so that the enemy does not know what to expect.

The Administration's argument is specious. The Army does specifically identify which interrogation techniques are permitted. It's absurd to claim that the CIA can't reveal its techniques also. Except, of course, that those techniques violate the law.

In the CSRT, since when and why, is it the government's responsibility to respond to a detainee's allegations? That isn't the point of the CSRT. You can't logically or reasonably take a lack of response by the government in this proceeding as evidence of the truth of the statements.

This brings us to the other way in which the Administration's argument is specious. Torture negates the fundamental fairness of any "hearing". Evidence obtained by torture must never be admissible. If claims of torture are made, the CSRT has the obligation to investigate them and the Administration has the obligation to refute them. Failure to speak when one has a duty to do so constitutes an admission.

I just look forward to the day when people apply half of the scrutiny to potential terrorists that they do to our government.

I prefer Thomas Jefferson's attitude: "[I]t would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism--free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; ... that the men of our choice have more respected the bare suspicions of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."
 

Mark,

I appreciate your comments. Let me respond.

1. While the army does specify, the CIA has maintained that it won't specify. Marty or JB even stated as much in a post recently (past month or so). Maybe its absurd, but that doesn't mean it isn't true.

2. If torture does negate, then arguably the detainees claims were either A.) baseless, or B.) didn't actually amount to torture as recognized by the pertinent law. As far as we know, the detainee just brought forward this claim at the CSRT. Who knows if the military had time to investigate the matter in regards to him in particular. My point is that one infers far too much, to say that the lack of a specific refusal in this hearing which arguably didn't concern the detainee's claims is somehow evidence of the truth of the detainee's assertions.

3. I agree that Thomas Jefferson's opinion is apt. But had you asked him if the accusations of suspected terrorists should be treated as God's truth, I'd haphazard a guess that he'd give you an earful.
 

Bart DePalma said...

I have nothing to add


If you could just learn to quit there. You won't be ahead, but you won't lose more ground.

Furthermore, unlawful enemy belligerents were usually summarily executed without the benefit of a military commission in Lilburne's time.

We can all laugh at the thought of the Englishmen of Cromwell's time torturing their language thusly: "Unlawful enemy belligerents".

You are ad bibbling again. You don't suppose any were sold into indentured servitude, do you? Of course not. The only history you know comes from delusional Reagan hagiographies from Regnery press.

The whole issue is moot. Torture doesn't work. It gets no reliable information in a timely fashion. Ever. Except on TV, and even Jack Bauer was asked by the Army to tone it down.
 

I agree that Thomas Jefferson's opinion is apt. But had you asked him if the accusations of suspected terrorists should be treated as God's truth, I'd haphazard a guess that he'd give you an earful.

Another student of American history with only Regnery press in his library. You shouldn't try to "haphazard" (sic) any guesses about what Jefferson might think, say or do, on this or any other topic.
 

I will say this:

If you were to hazard a guess that Jefferson would not treat the "confessions" of "tortured suspected terrorists as God's truth," you would be correct. And he would give you an earful for torturing them in the first place.

Jefferson on the Spanish Inquisiton and Christianity in general:

I do not find in our particular superstition of Christianity one redeeming feature... Millions of innocent men, women and children, since the introduction of Christianity, have been burned, tortured, fined and imprisoned. What has been the effect of this coercion? To make half the world fools and half hypocrites; to support roguery and error all over the world.


-- Thomas Jefferson, in his Notes on Virginia

Jefferson, like Napoleon, and any professional soldier/interrogator today, knew torture was ineffective and barbaric.
 

While the army does specify, the CIA has maintained that it won't specify. Marty or JB even stated as much in a post recently (past month or so). Maybe its absurd, but that doesn't mean it isn't true.

If their refusal to specify is specious (ah, the glory of alliteration!), then I think we're entitled to infer that they are hiding something.

If torture does negate, then arguably the detainees claims were either A.) baseless, or B.) didn't actually amount to torture as recognized by the pertinent law.

Or (C), true.

As far as we know, the detainee just brought forward this claim at the CSRT. Who knows if the military had time to investigate the matter in regards to him in particular.

Then the CSRT should delayed any decision in the case pending a hearing to determine the validity of the charges.

My point is that one infers far too much, to say that the lack of a specific refusal in this hearing which arguably didn't concern the detainee's claims is somehow evidence of the truth of the detainee's assertions.

The failure to hold a hearing, when any legitimate court would, is what creates the ground for suspicion. As matters now stand, all we have is evidence (censored though it was) from the defendant (a percipient witness).

But had you asked him if the accusations of suspected terrorists should be treated as God's truth, I'd haphazard a guess that he'd give you an earful.

He'd have given quite a stronger answer if you'd suggested to him that the American President would order the torture of prisoners. And he knew how to start a revolution.
 

Mark Field said...

someone: There is one particular reason to censor it. The administration and the CIA have made it a point that they don't want to reveal exactly what methods are used and what are not--so that the enemy does not know what to expect.

The Administration's argument is specious. The Army does specifically identify which interrogation techniques are permitted. It's absurd to claim that the CIA can't reveal its techniques also. Except, of course, that those techniques violate the law.


You misunderstand the current functions of the two organizations, which were bifurcated a couple years ago. The military handles POWs or those unlawful combatants which we have extended POW status to like Iraqi insurgents. Interrogation techniques which are lawful against POWs are limited and well known. There is no reason the classify them.

In contrast, the CIA handles unlawful combatant terrorists like al Qaeda against whom the more aggressive classified techniques are authorized. There are the techniques which to do not want to give the enemy so they can train against them the way our troops do in SERE.

Torture negates the fundamental fairness of any "hearing". Evidence obtained by torture must never be admissible. If claims of torture are made, the CSRT has the obligation to investigate them and the Administration has the obligation to refute them.

Actually, the military has a responsibility under the law to investigate claims of actual torture and to exclude any intelligence provided that is unreliable.

I prefer Thomas Jefferson's attitude: "[I]t would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism--free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; ... that the men of our choice have more respected the bare suspicions of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

As usual, Thomas Jefferson does a wonderful job of describing the proper relationship between a free citizenry and its government. However, the relationship between a free people and its government is not in any way analogous with the relationship between a military and its enemy.

Generally. a free citizen has a right to life and freedom which may not be taken by its government except through due process.

Generally an enemy during wartime has no right to life or freedom. The military has the legal right and indeed the duty to kill or capture the enemy until he is destroyed or surrenders.

These two situations could not be more different. You start from two polar opposite default states of affairs.

The western law of war gradually developed compromises where captured combatants would be spared death if they followed rules of conduct. If not, they were killed as if they were still on the battlefield. Once again, in war, the default state of affairs is killing.
 

"[I]n war, the default state of affairs is killing."

Not according to any respected military thinker I have read. But then, Bart has read all the greats. Reagan, Bush, Rumsfeld, Cheney...

Once again, (in Bart's own mind), he is the pre-eminent military thinker and scholar of all things martial, and fails to understand Clausewitz like almost everyone else. Bart suffers from the same failings as Clausewitz' disciples.

As B.H. Liddell Hart observed:

Civilization might have been spared much of the damage suffered in the world wars of this century if the influence of Clausewitz's monumental tomes On War, which molded European military thought in the era preceding the First World War, had been blended with and balanced by a knowledge of Sun Tzu's exposition on "The Art of War". Sun Tzu's realism and moderation form a contrast to Clausewitz's tendency to emphasize the logical ideal and "the absolute" which his disciples caught on to in developing the theory and practice of "total war" beyond all bounds of sense...

The ill-effects of Clausewitz's teaching arose largely from his disciples' too shallow and too extreme interpretation of it overlooking his qualifying clauses, but he lent himself to such misinterpretation by expounding his theory in a way too abstract and involved for concrete minded soldiers to follow the course of his arguement, which often turned back from the direction which it seemed to be taking. Impressed but bemused, they clutched at his vivid leading phrases and missed the underlying trend of his thought - which did not differ so much from Sun tzu's conclusions as it appeared to do on the surface.


Clausewitz is also "the preeminent military and political strategist of limited war in modern times."
 

Bart bullshits SERE training and says...

In contrast, the CIA handles unlawful combatant terrorists like al Qaeda against whom the more aggressive classified techniques are authorized. There are the techniques which to do not want to give the enemy so they can train against them the way our troops do in SERE.

Then goes on to say... "captured combatants would be spared death if they followed rules of conduct."

Internal FBI memos and press reports have pointed to SERE training as the basis for some of the harshest techniques authorized for use on detainees by the Pentagon in 2002 and 2003. Anyone can read what those techniquues are. There is nothing special the CIA does, except for the LSD and other drugs. I wish the two of you would stop insulting our collective intelligence. Your bullshit is sub par.

Abed Hamed Mowhoush turned himself over to U.S. forces in Iraq on November 10, 2003, about a month before U.S. forces captured ousted Iraqi leader Saddam Hussein, and at a time when pressure on Army intelligence to produce information was at its height. At Forward Operating Base (“FOB”) Tiger, where Mowhoush appeared, the U.S. Army had set up a base camp and prison operations earlier in the year; the facility was near the town of Al Qaim at the western edge of Anbar province, about a mile from the Syrian border. By mid-October 2003, FOB Tiger was staffed with about 1,000 soldiers from the 1st Squadron of the 3rd Armored Cavalry Regiment (“ACR”), based in Fort Carson, Colorado Springs, Colorado. Their mission included the detention and interrogation of captured prisoners, a mission that took on added importance that November, as U.S. forces picked up Iraqi men and boys in the region in an effort to quell a rising insurgency...

The "conduct" that got Mowhoush killed was surrendering to American forces. Religious wingnuts from Bart's back yard, no less. Colorado Springs.
 

Sister Lisa might say "Pity the person who needs 'Someone' (or my brother) to watch over him/her."
 

Good heavens! I am amazed a leftist internet namecaller like j.t. has even heard of Hart and Clausewitz in order to cut and paste from their works.

Now you may want to read what you cut and paste.

What exactly does your cut and paste have to do with our subject today, which is the treatment of unlawful enemy combatants?

I would love to chat about Sun Tzu, Clausewitz and Hart, but you have to read their seminal works Art of War, On War and Strategy before we begin.
 

Blow it out your more prolific and profound orifice, Bart. I have been reading Lidell Hart since the early 70s. What were you reading then? My guess would be comic books. It will surprise no one here to, (but you), to recognize that if you are out of your depth with Clausewitz, Sun Tzu is in another universe entirely. It's much more than a cultural thing. It serves no purpose to cast pearls before swine. The pig can root out the pearl in the swill and swallow it, but it cannot be assimilated. It just goes straight through and out the other end.
 

Penance is over; back to the grindstone:

"Bart" DePalma says:

Professor Horton:

I have nothing to add to someone's apt critique of the assumption that censorship of interrogation techniques is tantamount to admitting torture. However, this speech cries out for further response.

The comparison of a Combatant Status Review Tribunal (CSRT) or a Military Commission with the John Lilburne case is absurd.

John Lilburne plead: “The first fundamental liberty of an Englishman is that all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred.”

A CSRT is not a court trying a citizen for sedition or treason. Rather, it provides the status hearing to foreign enemy captures required by the Geneva Conventions and the MCA. There were no status hearings in Lilburne's time.


Big fat "straw man" (how very unusual for "Bart" here). Prof. Horton didn't mention the word "CSRT" once. The first mention of "CSRT" came from "someone", and the first mention of "Combatant Status Review Tribunal" from "Bart" himself.

If a foreign unlawful enemy belligerent is actually tried for war crimes before a military commission, he has never enjoyed constitutional due rights under the 5th and 6th Amendments. See Ex Parte Qurin....

I disposed of this malarkey here (and above in that thread).

... Lilburne was arguing for the rights of Englishmen facing trial, not for foreign unlawful enemy combatants. Furthermore, unlawful enemy belligerents were usually summarily executed without the benefit of a military commission in Lilburne's time.

I disposed of this malarkey here ... and here ... and here (starting to see a pattern, folks?).

Nor are the foreign enemy captures being flogged as Lilburne suffered.

Quite true. The MCA specifically prohibits "flogging" (§ 949s). We've found other ways to torture prisoners than leave less visible marks. But see JT Davis's linked-to account above; sometimes there's a slip....

(As an aside, Lilburne's description of flogging provides a useful measure of what true torture is about - the intentional infliction of severe pain - and provides a useful contrast which shows that disorienting prisoners through sleep deprivation, loud noises, lights, temperature changes and even the 1-2 minute panic of waterboarding hardly rises to the level of torture.)

"Bart"'s favourite colour shirt is brown, didjaknow?

[Prof. Horton]: And the second case for secrecy we see in the trial of David Hicks, which follows a pattern established with the John Walker Lindh case. It came to a plea bargain in the end, and a strong focus on silencing the witness.

How can a plea bargain releasing Hicks to the Australians for a short imprisonment which will almost certainly be followed by a ghost written book and a media tour in time for our 2008 elections possibly be considered "a strong focus on silencing the witness?"


Uhhhhh, Bart <*sotto voce*>: Read for comprehension next time. Really. You must be the only person on this blog stoopid enough not to have figured out what Prof. Horton was talking about ... or the only one so brazenly dishonest as to ignore his plain meaning (and also parenthetically stoopid enough to think that other readers won't see through your patently ransparent dissembling....).

Cheers,
 

someone:

You state, "Now let’s consider – would there be any need to censor the allegations unless they are true? No. Indeed, the fact that they are censored should be taken as an admission."

There is one particular reason to censor it. The administration and the CIA have made it a point that they don't want to reveal exactly what methods are used and what are not--so that the enemy does not know what to expect. He could have suffered from any number of techniques that are hardly torture. Now, I obviously can't disprove the assertion that he was. I am merely presenting another potential reason.

It is logically fallacious to argue that because his statements were censored, they must be true. The only logical inference that can be drawn is that he stated something worth being classified. It does not prove that he was in fact tortured (as in beat up or something similar).


Sometimes formal logic must take a back seat to realism and common sense.

Cheers,
 

somebody:

In the CSRT, since when and why, is it the government's responsibility to respond to a detainee's allegations?....

Yes, I've wondered about that too. The CSRTs are set up to allow the gummint to 'make its case', and provide no guarantees whatsoever that the detainee can really respond in any manner. Given that this is a "stacked deck", a rigged 'show trial' providing none of the customary "judicial guarantees which are recognized as indispensable by civilized peoples", what's there to "respond" to? ... particularly when all you need to do is go snippedy-snippedy and make even the allegations go away?

You and "Bart" were born a century too late.

Cheers,
 

"Bart" DePalma:

You misunderstand the current functions of the two organizations, which were bifurcated a couple years ago. The military handles POWs or those unlawful combatants which we have extended POW status to like Iraqi insurgents. Interrogation techniques which are lawful against POWs are limited and well known....

Yeah, yaknow, like Abu Ghriab and like the case that JT Davis linked.

... There is no reason the classify them.

How about "hide" or "cover up"?

In contrast, the CIA handles unlawful combatant terrorists like al Qaeda against whom the more aggressive classified techniques are authorized....

Note: not "justified".

... There are the techniques which to do not want to give the enemy so they can train against them the way our troops do in SERE.

What a pack'o'malarkey. Amongst other things, the maladministration has bragged about how they took less that five minutes of "waterboarding" to 'convince' Khaid Shaikh Mohammed to talk....

[Mark Field]: Torture negates the fundamental fairness of any "hearing". Evidence obtained by torture must never be admissible. If claims of torture are made, the CSRT has the obligation to investigate them and the Administration has the obligation to refute them.

Actually, the military has a responsibility under the law to investigate claims of actual torture and to exclude any intelligence provided that is unreliable.


Not "any evidence obtained under torture". Of course, what's "reliable" (or, more specifically, "of sufficient probative value") is up to the military to decide <*wink-wink*>

I'd note parenthetically that the MCA set the bar for "torture" to "severe physical or mental pain or suffering" and raised the bar for "cruel or inhuman treatment" to be identical with "torture" (but absent the "torture" condition that "torture" be for "the purpose of obtaining information of a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind". IOW, "cruel or inhuman treatment is just gratuitous "torture", according to the MCA.

[Mark Field]: I prefer Thomas Jefferson's attitude: "[I]t would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism--free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; ... that the men of our choice have more respected the bare suspicions of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

As usual, Thomas Jefferson does a wonderful job of describing the proper relationship between a free citizenry and its government. However, the relationship between a free people and its government is not in any way analogous with the relationship between a military and its enemy.


They're not "people". You know, "persons". They're "sub-human". Clear now?

Generally. a free citizen has a right to life and freedom which may not be taken by its government except through due process.

Generally an enemy during wartime has no right to life or freedom. The military has the legal right and indeed the duty to kill or capture the enemy until he is destroyed or surrenders.


Dealt with above in a previous post of mine.

These two situations could not be more different. You start from two polar opposite default states of affairs.

"Bart" sho does love his "wars". Makes things so much easier.

The western law of war gradually developed compromises where captured combatants would be spared death if they followed rules of conduct. If not, they were killed as if they were still on the battlefield. Once again, in war, the default state of affairs is killing.

No. Incapacitating. Gratuitous killing is contrary to the law of war (as much as there is such).

Cheers,
 

Arne,

As a welcome back gift, I present you with this picture of Bart.

Some joker told "Herr Generalissimo Field Marshall" it was a a Ghillie suit and he believed it.
 

Someone said: There is one particular reason to censor it. The administration and the CIA have made it a point that they don't want to reveal exactly what methods are used and what are not--so that the enemy does not know what to expect. He could have suffered from any number of techniques that are hardly torture. Now, I obviously can't disprove the assertion that he was. I am merely presenting another potential reason.

I am skeptical of that argument for the reasons Mark Field articulates. However, there may be another legitimate reason to censor any graphic descriptions of torture (whether or not they are true). Descriptions of Abu Ghraib redux are likely to hand enemies of the US another propaganda victory. Unfortunately, precisely b/c of Abu Ghraib, accounts of torture coming from detainees are likely to have credibility (even if descriptions of torture are exaggerated or fabricated).
 

Kangaroo Court?

Anyone? Bühler... Bühler?
 

I agree with Adam that preserving the national reputation is another understandable motivation for censoring baseless allegations of torture.

However, including the "(censored)" portion in the transcript does nothing to help the reputation, but does show a devotion to the maintenance of the text. Even when redaction makes the statements nonsensical, the portions in-between are still preserved. To me, this signals an adherence to an ideal of accurate representation that has outweighed any concern about reputation.

Furthermore, as Adam and others have implied, the censored sections only hurt the national reputation, as this kind of secrecy (though prevalent in many of the world's nations) is anathema to our sales pitch for democracy.

This makes me return to Scott's position. If censoring the text isn't protecting the national reputation or security*, what is it protecting?

I think it's worth considering that censorship is, at least to some degree, protecting somebody's hindquarters.



*I understand the basic argument for censoring torture accounts (or interrogation techniques that the prisoner construes as torture) is "that way, the enemy does not know what to expect." It strikes me (pun intended) that proponents of edgy interrogation techniques often point to the efficacy of such techniques (like waterboarding) in making people willing to talk.

It's torturous logic. If such techniques are so consistently effective, how can the enemy prepare for them at all? At some level, administration or agency, it boils down to a matter of having your cake and beating it, too. For instance, by one account, the average CIA officer lasts 14 seconds under waterboarding. If such techniques really provide useful information AND they are effective to a fault, then telling people what techniques we used should provide nothing to the enemy. Heck, let the would-be terrorists-in-training endure "waterboarding practice." I bet there'd be a lot fewer recruits after a few days of that nonsense.

If the techniques are being censored for security purposes, it would seem to be a fairly stupid and unnecessary thing to do.
 

If the techniques are being censored for security purposes, it would seem to be a fairly stupid and unnecessary thing to do.

I meant to add: "if we accept the claims of efficacy made by proponents of such techniques."
 

If such techniques are so consistently effective

Please cite one credible expert on subject whs says "such techniques" are effective.


If the techniques are being censored for security purposes, it would seem to be a fairly stupid and unnecessary thing to do.

I'll leak the "classified info" and endanger national security. You will all be "shocked and awed".

They don't use water in water boarding. They use Coca-Cola or some other carbonated beverage. Think about it. If you were drinking a diet coke as you read this, it's all over your monitor and you've been there, done that. It stings, don't it? A lot.
 

Here is a sickening report from today's online edition of COUNTERPUNCH, where some of the abuses AMERICANS have inflicted on prisoners at Guantanomo are discussed:

http://www.counterpunch.org/soldz04132007.html

I do not make it a practice to use obscenities in online commentary, because it is impolite and unbecoming, and because it brings one down to the level of those against whom one expresses the obscenity, but, after reading this, I have to say, "Fuck you!" to Bart and any others who excuse and support our ongoing barbarity against other human beings, minimizing it as "not really torture" and championing it as being "necessary" to save ourselves from the imagined ravening hordes coming to kill us all NOW. Fuck you. Fuck your paranoia. Fuck your bigotry. Fuck your lack of humanity. Fuck your hatred. Fuck your lies.
 

Oh, yeah... while the carbonated liguid in your nasal passages is simultaneously stinging the shit out of you and making you feel like you are drowning, they are banging you in the head with a phone book. Nothing really special, just painfully ineffective. A migraine headache on steroids. The Mexican police have been doing this for years. You all watch too many Hollywood movies.
 

Adam and PMS Chicago,

I appreciate your comments. I completely agree that the use of "censored" does suggest some level of impropriety (even potentially actual torture). If the detainee was in fact tortured, I do condemn that.


My issue is that the use of "censored" is presented in the speech as de facto proof of what Scott Horton hypothesizes, when A.) there are a myriad of reasons for "censoring" and B.) Scott Horton seems to take the words of an alleged terrorist as God's own truth. It seems very irresponible.

To preempt the usual canard, nothing in my argument means that the government's word should be accepted at face value or not scrutinzed. I just find it mildly (okay, very) ironic that a potential terrorist's claims are accepted at face value (seemingly as long as they support Scott's predisposition in the matter.)
 

JT Davis said...

I have been reading Lidell Hart since the early 70s.

Very good. Hart's claim to fame was as a theoretical source of the WWII German blitzkrieg tactics. Rommel and Guderian were fans who put Hart's theory into practice.

From your posts here, military strategy would not appear to be one of your interests. You have piqued by curiosity. What was your interest in Hart?

What were you reading then? My guess would be comic books.

You have my age about right. I was indeed reading comic books as a pre-teen in the early 70s.. I did not start reading Hart and Sun Tzu until my mid teens when I decided to serve in the military and started playing board war games.

It will surprise no one here to, (but you), to recognize that if you are out of your depth with Clausewitz, Sun Tzu is in another universe entirely.

Underestimating your opponent is not something you would have learned from these two strategists, but it is something you engage in continuously with those with whom you disagree politically.

So much the better for your opponents.
 

I just find it mildly (okay, very) ironic that a potential terrorist's claims are accepted at face value (seemingly as long as they support Scott's predisposition in the matter.)

I don't think anyone accepts the word of any detainee standing alone. What's troubling (that's a euphemism for the much less polite view I actually have) is that there is so much context which supports the belief that the detainee may very well be telling the truth. The only remedy for this disaster is Jefferson's: "Let facts be submitted to a candid world...."
 

Hart's claim to fame was as a theoretical source of the WWII German blitzkrieg tactics. Rommel and Guderian were fans who put Hart's theory into practice.

Bzzzt! Wrong answer. The actual genius there (some might say crackpot was J.F.C. Fuller. I think you've watched Patton one too many times.
 

Mark,

Scott's claim is that the detainee's claims are true because the specifics are censored. Well, if the government was trying to cover it up, wouldn't they just censor any reference made by the detainee to his own torture? If the adminstration was half as nefarious as it is made out to be censoring the word torture as well as the specific allegations would make much better sense.

On the other hand, if the government knew he was tortured and didn't care, why censor it all then?

Once again, I have no way of knowing if he was in fact tortured. The US's recent history on the matter is not comforting.

Maybe my response is predicated on my reaction to a broader issue. I see these claims banded about constantly as if they are all true. Maybe they are. Certainly, for the ones that are, those responsible must be condemned and punished. But, this debate in the broader liberal/Anti-Western context.

Western society is all too eager to discover its own failings. Self-criticism is good and healthy. But assuming the worst about ourselves leaves us with nothing worth defending. The strain of thought that runs through the academic/intellectual world, seeks and finds many faults with us. In its everlasting quest to deconstruct the very foundations of our culture and society, anything and everything bad to be said, is said and is accepted.

It is against that which I fight.
 

Underestimating your opponent is not something you would have learned from these two strategists, but it is something you engage in continuously with those with whom you disagree politically.

So much the better for your opponents.



Bart, I don't underestimate you. I have assessed your strengths and capabilities as accurately as I have your tactics and strategies. These may not be readily apparent to some, but for most people you are a short read and not very deep. Perhaps you are the one doing the underestimating.

One of your obvious weaknesses is your poor perception of the real world.

So much the better for your opponents.
 

It is against that which I fight.

You finally enlisted? Good for you, you pompous "culture warrior" asshole!
 

Speak of the devil!

Patton is going to be on AMC in a few minutes. I think I'll watch and see my favorite general, one of the best soldiers to ever serve in any army, Lucien K. Truscott.

Patton was a lunatic, like Bart.
 

JT Davis said...

Bart: Hart's claim to fame was as a theoretical source of the WWII German blitzkrieg tactics. Rommel and Guderian were fans who put Hart's theory into practice.

Bzzzt! Wrong answer. The actual genius there (some might say crackpot was J.F.C. Fuller. I think you've watched Patton one too many times.


There is not one source for the WWII German blitzkrieg doctrine. Indeed, the German thought processes for employing indirect approach started in 1918 with the storm troopers infiltrating between enemy strong points. Several theorists in the 1920s and 30s added tanks to that equation to come up with Blitzkrieg.

If you know anything about Hart, you will know what I posted above is true.

Obviously, if you know about J.F.C. Fuller., you have more than a passing knowledge of military history and should know better.

Speak of the devil! Patton is going to be on AMC in a few minutes. I think I'll watch and see my favorite general, one of the best soldiers to ever serve in any army, Lucien K. Truscott. Patton was a lunatic, like Bart.

Why thank you for the comparison. I am honored to be compared to one of the finest operational commanders the US Army has ever seen.

Actually, one of the best couple scenes of the movie Patton was the debate between Patton, Bradley and Truscott over the advisability of a naval landing behind the German lines to flank the enemy and open up the coastal road to Messina, Sicily followed by the scene between Patton and Bradley discussing the aftermath of the naval flanking attack.

The problem was that the Germans had blocked the US advance which was funneled into a narrow corridor along the coastal road. The inland routes were too rough to move through and the only options were to continue the bloody frontal attacks or to try to flank and take the enemy position with a naval landing behind enemy lines.

Patton wanted to launch the naval flanking attack to keep the momentum going against the Germans (although the scene makes Patton appear as if all he is concerned about is getting to Messina before Montgomery). Bradley and Truscott were conservative and wanted to continue the frontal attacks until more preparations could be made for the naval landing. The Patton character ordered the naval landing over the objections of Bradley and Truscott and chided the Truscott character:

You're a very good man, Lucian. You want to guard against being too conservative. Remember what Frederick the Great said: ''L 'audace, I'audace! Toujours I'audace!''

In the next scenes, Patton is leading the attacks to relieve the breach head where the naval landing took place. Patton was not one to send his men into battle when he himself was unwilling to go.

After the road was cleared, Bradley and Patton discuss the aftermath of the operation:

Patton: I had to kick a few butts but Truscott finally broke through to those people on the beach.

Bradley: Have you seen the casualty lists?

Patton: Yes, I've seen them. What's the word from the coast road?

Bradley: The 3rd Division's east of Brolo, heading toward Messina.

Patton: Let's get over there. I want to go in with the troops.

Bradley: You go ahead, George. I'm not very good at that.

Patton: General Bradley, it's time to consider how many casualties we'd have if we were still crawling on that goddamn road.


One of my favorite military mottos is the one used by the SAS: "Who acts wins."
 

Scott's claim is that the detainee's claims are true because the specifics are censored.

That's a reasonable conclusion, given the circumstances. There would be no need to censor untrue details of torture allegations -- those could not possibly reveal the CIA's methods. Only true claims would do so.

this debate in the broader liberal/Anti-Western context.

I have no idea what you're referring to here. There is no "Anti-Western" strain in liberalism, at least none that I'm aware of (and I'm pretty confident I would know). There certainly is no such strain in the torture debate -- it's the liberals who are demanding compliance with Enlightenment values when they denounce torture.

There is, sad to say, an anti-Enlightenment strain in modern conservatism (though people can and do debate whether the guilty parties are "true" conservatives). That strain rejects the values of openness, tolerance, equality, and secular government. Those are Enlightenment values, and we liberals are fighting for them. If you value them too, then I'd say to you what Victor Laszlo said to Rick: "Welcome back to the fight. This time I know our side will win."
 

Mark Field said...

There is, sad to say, an anti-Enlightenment strain in modern conservatism (though people can and do debate whether the guilty parties are "true" conservatives). That strain rejects the values of openness, tolerance, equality, and secular government. Those are Enlightenment values, and we liberals are fighting for them.

Classical liberalism is a revolutionary philosophy based on liberty and freedom.

The left in this country abandoned the principles of liberalism in favor of various degrees of socialism by the Great Depression. The only part of true liberalism left on the left is the name. Liberalism today is all about the conservative principles of defending the status quo State.

I would argue that modern "conservatism" is the political philosophy of change and freedom and far more liberal than the so called modern "liberals."

I agree that the modern left champions equality and secular government to the extreme. These principles are foundations of socialism. However, I think it is arguable whether equal results as opposed to equal rights and banishment of God from the public square are classical liberal or enlightenment ideas.

Moreover, take another look at all the posts here from the left attacking with considerable vitriol any conservative and arguing whether the left should even recognize the existence of conservative ideas, nevertheless debate them, and then tell me again how the liberals champion "openness" and "tolerance."
 

Mark,

(This isn't really directed at you personally, but a broader statement of perspective.)

The fundamental willingness to believe the worst about ourselves is the problem. Any conflict, any Anti-Western hatred is seen through the prism of "what did we do to them? In what way was it our fault?" The questions aren't some honest searching for a real cause, but a cherry picking approach to confirm what we know about ourselves--we are largely responsible the many of the world's ills.

This is seen through the torture debate. Evidence of our failings is paraded around. Look! See how bad we are. It only serves to confirm and rationalize the West's hatred towards itself and guilt over past wrongs.

Now, Mark, I'm not saying that you see it this way, but many on the left do. Many don't consider Western civilization worth saving. Look at CLS (not Columbia), the deconstructionists, CRT and others. They aren't on some honest attempt at making us better. They gave that up long ago. It is deconstructing and reducing everything about Western civilization to some ill, base motive.

Once again, you are fighting the good fight. I agree that torture is immoral and illegal. You have good motives.

Many, many others, do not.

Side Note: I find it very amusing when Derrida starts saying what we should do.
 

Of course he is, Bart.

Someone cover someone's eyes until he removes the flagpole from his ass.


The Canicattì slaughter was an incident that occurred in Italy following liberation by American forces. During the invasion of Sicily in July 1943, approximately eight unarmed Italian civilians were killed by U.S. troops under the command of General George Patton. The town of Canicattì had already surrendered when U.S. troops entered, following heavy German bombardment during their withdrawal.

Upon arrival, U.S. troops received a report that civilians were looting a bombed factory, filling up buckets with the factory's products - food and liquid soap. At around six o'clock in the evening Lieutenant Colonel McCaffrey and some Military Police arrived at the factory. McCaffrey fired into the crowd after it failed to disperse. At least eight civilians, including an eleven year old girl, were killed, though the exact number of casualties is uncertain. [1]

A confidential inquiry was made, but McCaffrey was never charged with an offence relating to the incident. He died in 1954. This incident remained virtually unknown until Joseph S. Salemi of New York University, whose father witnessed it, publicised it.


The Biscari massacre was a war crime committed by U.S. troops during World War II, where unarmed German and Italian prisoners of war were killed at Biscari in 1943.

Following the capture of Biscari Airfield in Sicily on July 14, 1943, seventy-six German and Italian POWs were shot by American troops of the 180th Regimental Combat Team, 45th Division during the Allied invasion Operation Husky. These killings occurred in two separate incidents between July and August 1943. The first incident involved 34 Italians and 2 Germans, while the second involved 40 Italians. The shootings violated Article 13 of the Third Geneva Convention on the treatment of POWs.

Sergeant Horace T. West was charged in the first incident with killing the 36 POWs under his charge. General George Patton upon hearing of the charge directed the corps commander General Omar Bradley to order West to tell the court that the prisoners were "snipers or attempting to escape or something". Bradley refused. West admitted that he had participated in the shootings, was found guilty, stripped of rank and sentenced to life in prison, though he was later released as a private. In the second incident, Captain John T. Compton was court-martialed for killing 40 POWs in his charge. He claimed to be following orders. The investigating officer and the Judge Advocate declared that Compton's actions were unlawful, but he was acquitted. Compton was merely transferred to another regiment and died a year later fighting in Italy. This was seen at the time as a clear case of injustice and differing treatment for officers and NCOs.

Those involved claimed in their defence they were following orders. They quoted General George Patton’s speech to them before the invasion of Sicily:

When we land against the enemy, don't forget to hit him and hit him hard. When we meet the enemy we will kill him. We will show him no mercy. He has killed thousands of your comrades and he must die. If you company officers in leading your men against the enemy find him shooting at you and when you get within two hundred yards of him he wishes to surrender- oh no! That bastard will die! You will kill him. Stick him between the third and fourth ribs. You will tell your men that. They must have the killer instinct. Tell them to stick him. Stick him in the liver. We will get the name of killers and killers are immortal. When word reaches him that he is being faced by a killer battalion he will fight less. We must build up that name as killers. (Botting 355)

After the massacre Patton was said to have stated that shooting the prisoners in ordered rows was "an even greater error". This was, it has been claimed, because Patton realised that leaving such evidence clearly indicated the POWs were shot in cold blood. If it appeared they had been shot in battle, it would have allowed the killings to escape detection. Neither Patton nor the unit commanding officer, Colonel E Cookson, was held officially responsible in any way. In comparison, in 1946 Waffen-SS General Sepp Dietrich and SS Colonel Joachim Peiper were found guilty of war crimes at the Malmedy Massacre Trial by the Dachau International Military Tribunal, and both received long prison sentences for their parts in the Malmedy massacre of American soldiers.

Patton also became embroiled in the Canicatti slaughter of a dozen unarmed civilians, including six children, at a soap factory after the town had already surrendered to Allied forces in July 1943. The incident was later covered up.
 

This comment has been removed by the author.
 

Robert Cook,

Some things to consider.

Bart, when he is not spouting nonsensical theories about revolutionary evangelical conservatism (and the evil counter-revolutionary liberals) that have more in common with Robespierre, jacobinism and The Terror of the French Revolution, subscribes to the distorted misperception of Clausewitzian total war and it was Clausewitz who said war is a continuation of politics by other means. Bart says killing is the "default state of affairs in war".

Bart was a College Republican.

Republicans learn how to fight hard against Democrats by practicing on one another first. 'There are no rules in a knife fight,' Grover Norquist instructed the young conventioneers in a speech.

Of course, that prick Norquist has never been in a real knife fight in his life. There are some general "rules" you should follow if you want to survive one, like never throw your blade at an opponent. The only people who throw knives are circus performers and Hollywood actors, but that's another matter.

Monica "Buzzsaw" Goodling worked for "Tim Griffin, then the deputy research director of the RNC who bragged that his shop made the bullets in the war against Democrats -- and later the administration's pick to be the U.S. attorney for eastern Arkansas."

Even the women are killers.

Morgan Wilkins, the intern hired by the College Republicans National Committee to win the hearts and minds of Michigan 20-somethings, is planning events that some may find odd. To others, they may be offensive.

One such idea is "Catch an Illegal Immigrant Day," in which a volunteer would play the part of an illegal immigrant and hide somewhere on campus while others try to find him. The winner would receive a prize.

Her other ideas include an event called "Fun with Guns," in which young Republicans would use a BB gun or paintball gun to shoot cardboard cut-outs of Democratic leaders such as Sen. Hillary Clinton (D-N.Y.) and Sen. John Kerry (D-Mass.)



I could go on. The point is, we don't want to fuck Bart and the GOP, we don't even need to kill them to totally defeat them, disarmed and rendered helpless and impotent and driven from the field. "Fairminded dialogue" with them will just get you a knife in the back. It's what they are trained to do, and they practice on each other. But you are right to be angry. Stay angry.

As a practical matter, the military objectives in real war that support one's political objectives generally fall into two broad types: "war to achieve limited aims" and war to "disarm” the enemy--i.e., “to render [him] politically helpless or militarily impotent." Thus the complete defeat of one's enemies may be neither necessary, desirable, nor even possible.


"Someone" is probably just a naive boob. We have them on our side, although they are usually much sharper.
 

Please cite one credible expert on subject whs says "such techniques" are effective.

Are there any?? I'm not sure how you define credibility, but to me, anyone that argued torture was effective would be less than credible.

Certainly it's the core belief of anyone who believes we should keep the details secret lest the enemy know how to counter it. That being the position I was working against, I'm not sure what your objection is.
 

Because the results of the interrogation techniques are classified, we only have circumstantial or indirect evidence of their effectiveness. However, we do have some indication that these techniques worked and worked quickly:

Torturing Khalid Shaikh Mohammed Worked
By James Joyner


The Chicago Tribune ran a chilling piece in yesterday’s edition by John Crewdson bolstering the case for torturing terrorist suspects.

Spilling Al Qaeda’s secrets

Moral and legal aspects aside, conventional wisdom is that torture simply isn’t practical: that someone who is being tortured will say anything to make the torture stop, and that information gleaned through torture is therefore not reliable. Some former military and intelligence officers say, however, that physically aggressive interrogation techniques that some human-rights groups consider torture can be effective in the short term. When asked for specifics, the technique they cite is “waterboarding,” in which water is poured over a subject’s face to create the sensation of drowning.

Consider Khalid Shaikh Mohammed, the 39-year-old former Al Qaeda operative who was the Sept. 11 mastermind and bearer of many Al Qaeda secrets. If anyone had a motive for remaining silent, it was the man known to terrorism investigators as “KSM.” But not long after his capture in Pakistan, in March 2003, KSM began to talk. He ultimately had so much to say that more than 100 footnoted references to the CIA’s interrogations of KSM are contained in the final report of the commission that investigated Sept. 11. Not that everything KSM said was believable. But much of his information checked out in separate questioning of other captured Al Qaeda figures.

What made KSM decide to talk? The answer may be waterboarding, to which KSM was subjected on at least one occasion, according to various accounts. Intelligence operatives say that while waterboarding can break through a suspect’s initial resistance, it isn’t effective for long-term interrogation. Once a suspect begins to communicate, however, an interrogation specialist can put into action a wide range of far more subtle techniques, which include playing to a subject’s ego or pretending to be his friend.

It could not be learned exactly when KSM was waterboarded or whether the technique was used more than once. But only 12 days after being captured in Pakistan, on March 1, 2003, KSM made his first reported major revelation.

Crewdson follows this with a detailed timeline gathered from the 9/11 Commission’s final report and ends, “The commission’s report was published in July 2004. But for all the world knows, KSM may be talking still.”

 

The most effective interrogator at Dulag Luft. Probably the best interrogator the German's had.

That's the MCITTA (Marine Corps Interrogator Translator Teams Association)

One would suppose they know something about the subject.

My objection? That there is even a discussion about whether torture is effective. It isn't. Period. And now we have boobs, like Someone, actually arguing that we don't have any evidence that torture is going on. He's like the good Germans near the death camps, the smell of burning flesh is in the air all day and night, but he has no idea such a horror is going on on right under his own nose. I can't stand people that stupid and oblivious. It's torture to be around them and have to deal with them.

Look:



This is seen through the torture debate. Evidence of our failings is paraded around. Look! See how bad we are. It only serves to confirm and rationalize the West's hatred towards itself and guilt over past wrongs.

What do you mean, "we," white man? I don't do "guilt" and no one is innocent past the age of two or three. (How many children have you raised?) Guilt? I'm not torturing anyone. I'm also not in denial about the fact that people like you are in denial about it while people like Bart know full well it's going on, it's not an effective interrogation method and it's only purpose is a tool of terror and fear. You are the one who is guilt ridden. So much so you must remain in denial.

Now, Mark, I'm not saying that you see it this way, but many on the left do. Many don't consider Western civilization worth saving. Look at CLS (not Columbia), the deconstructionists, CRT and others. They aren't on some honest attempt at making us better. They gave that up long ago. It is deconstructing and reducing everything about Western civilization to some ill, base motive.


Man, you really are a chump. Worth saving? From what? Since when is it in danger? They tried that in Germany. Germany was destroyed, and not by the Jews. If "Western civilization" is in any danger, it's endangered more from the likes of you than anyone or anything I can imagine. You are the one who seems to feel it is threatened and inherently weak, like you. "Oh, no! I've been criticized! This is the end!" Do you still sleep with the light on? Do people still take one look at you and want to slap the crap out of you, like back in elementary school?
 

Bart,

Is that a new suit? The constant flow of flopsweat must ruin your "hard work" clothes.

John Crewdson, credible expert

Unless you consider reading manufactured and planted "news" torture, we can all...

Bwahahaha!

BTW, how's that Able Danger story coming, Bart? Anyone seen Curt Weldon lately? Anyone?
 

The fundamental willingness to believe the worst about ourselves is the problem. Any conflict, any Anti-Western hatred is seen through the prism of "what did we do to them? In what way was it our fault?"

This is a profound misunderstanding of liberal attitudes. Let me take this in two steps.

When you see criticism of our government by liberals -- for the most part; I'm not talking about any radical fringe -- that criticism is based on what they perceive as the failure to live up to fundamental Western values. The criticism, then, is not a rejection of those values, it's an affirmation of them.

Next, the willingness to consider that "we" might be in the wrong is a fundamental attribute of any open, tolerant society. It's closed societies -- Communists, religious fanatics, etc. -- which never question their own behavior.

Lastly, the effort to see the world through the eyes of others, to understand how and why "they" might be angry with "us", is an essential step in understanding how to solve the problem. It's not an effort to "be like them" (assuming that's a bad thing), it's an effort to figure out the best way to a solution. Again, only doctrinnaires have solutions ready at hand to apply regardless of the actual conditions.

Evidence of our failings is paraded around. Look! See how bad we are. It only serves to confirm and rationalize the West's hatred towards itself and guilt over past wrongs.

No, evidence of our failings is published in order to move people towards compliance with our expressed values. We can't correct our faults until we first recognize them. By your logic, no faults could ever be exposed.

The truth is, though, that it's not liberals who most criticize Western society, it's the radical conservatives. Today's Jeremiads come from Jerry Falwell, James Dobson, Dinesh D'Souza and their ilk as much as, if not more than, any liberal. And their criticisms expose a deep distaste for the fundamental Western values -- Enlightenment values -- which I want to defend.

Look at CLS (not Columbia), the deconstructionists, CRT and others. They aren't on some honest attempt at making us better. They gave that up long ago. It is deconstructing and reducing everything about Western civilization to some ill, base motive.

I'm always puzzled that someone (damn the ambiguity; I mean, of course, a generic "someone") would attribute to an entire group the attitudes and beliefs of an isolated and essentially powerless fringe. Crits have no power or influence in this world and never have had any. Jerry Falwell, George Bush, et al. do. It's the latter who endanger our society.
 

'Able Danger' Could Rewrite History

I'd rather discuss Able Danger and Crazy Curt Weldon than military strategy, Bart, (You can't teach anyone anything there), because if anyone can explain conspiracist pseudo-conservative drivel to us, it would be you.
 

Certainly, torture is not the sole property of loose canons. This technique is also advocated by those who believe it is the right thing to do. On 21 Oct. 2001, Walter Pincus reported in the Washington Post that FBI agents were becoming frustrated in their efforts to glean information from terrorist suspects and said, "it could get to the spot where we could go to pressure." On 23 Jan. 2002, CBS' "60 Minutes" aired two Mike Wallace interviews for a segment on torturing terrorists during interrogation-1) French Maj. Gen. Paul Aussaresses and 2) Harvard law professor Alan M. Dershowitz:

"1) Aussaresses was asked whether he would use torture to force al Qaeda suspects to talk. He answered in English and without hesitation: "It seems to me that it is obvious." He is the author of the book, The Battle of the Casbah: Terrorism and Counter-Terrorism in Algeria 1955-1957 where he describes his use of torture against Algerian insurgents. Aussaresses had no intelligence training and his instruction in interrogation came from the Algerian Gendarmerie: "They quickly informed me that the best way to force a terrorist who refused to disclose what he knew was to torture him." Ironically, he admits, "It was the first time that I tortured anyone. But . . . the man died without talking." The book is also replete with stories of summary executions of those who admitted to being involved with the Algerian insurgency or those who were fingered by tortured Algerians; he doesn't mention any effort to confirm an accusation before he executed the accused. Nevertheless, he justifies the use of torture by saying that it was instrumental in defeating the insurgents by 1957 even though he admits many merely withdrew to the Atlas Mountains only to return later to expedite the withdrawal of France from Algeria in 1962."

"2) The self-described civil libertarian, Alan Dershowitz, published a book in 2002 entitled, Why Terrorism Works: Understanding the Threat, Responding to the Challenge. In Chapter Four, he calls for the use of "nonlethal" torture in "ticking bomb" situations. Unfortunately, he neither tells us how we can be sure that an event is not imminent nor how we can be sure that the torture applied will not have a fatal result. On the surface, his recommendation of pushing needles under someone's fingernails appears to be a nonfatal technique. But, can we be sure of that in the case of an older source with a heart problem? As evidence that torture works, Dershowitz describes an event that took place in the Philippines in 1995. It seems the police captured one Abdul Hakim Murad after finding a bomb-making factory in his apartment in Manila. They beat him and broke his ribs, burned him with cigarettes, forced water down his throat, then threatened to turn him over to the Israelis. Sixty-seven days later he broke and told of terror plots to blow up 11 airliners, crash another into the headquarters of the CIA and to assassinate the Pope. Unsaid here is which of these purported plots were subsequently confirmed. Also, I find it curious that Dershowitz would argue for the use of torture in a "ticking bomb" situation based on a torture-interrogation example that took sixty-seven days to bring to fruition. According to WO Brian Copeland of the Navy/Marine Intelligence Training Course (NMITC), Dam Neck, Va., current Marine Corps interrogation doctrine is that detainee information is highly perishable and, in a tactical environment, has a shelf life of 24 to 48 hours."

 

jt:

You have very little understanding of the interrogation techniques involved.

As your examples show, torture is the infliction of severe pain. You, I and the CIA all agree that torture does not work.

The coercive interrogation techniques are not meant to inflict pain, they are meant to disorient and break down the mental barriers against revealing information.

kos reviewed a declassified CIA interrogation manual which covered in great detail the scientific psychological basis behind coercive interrogation techniques.

As the manual discusses, the objective is not to gain confessions, but rather to gain information. You can confirm information by comparing it to that given by other prisoners and thus determine the effectiveness of the techniques being used and change them if necessary.
 

Bart linking to Kos? Am I in an alternate universe? Bart, keep telling me that I have "very little understanding" about any old thing. It comforts me and lets me know I'm right with the world, even if all else is not yet quite right with world. Soon it will be, though. The latest document dump is a pile of straw that will break your dead camel's humps. It doesn't look good for any of them, least of all Rove. His fingerpprints are all over the smoking hot e-mails about purging USAs. Time for you to do some damage control on that sinking ship. This one already sank and all your hot air ain't gonna float it. As far as your little link to Kos, I'd advise you to check this one that Robert Cook cussed you out about upthread.

BTW, Bart, my kid was at Benning and SOA back in the early 90s when it still was SOA. I'll bet I know a thing or two more about it than you do, but thanks for the smoke. Your aim ain't so hot. None of it went up my ass. Get closer... closer.
 

"Bart" DePalma [to JT Davis]:

Underestimating your opponent is not something you would have learned from these two strategists, but it is something you engage in continuously with those with whom you disagree politically.

Yaknow, I se no evidence that JT has underestimated his opponents. To the contrary, in fact....

You, "Bart", OTOH, don't seem to know when you're getting you a$$ whupped ... which could prove eventually fatal for you. I believe that Pete Seeger had you pegged in Wiast Deep in the Big Muddy.

Cheers,

Cheers,
 

whenever i link to the "anti-torture memos" here at balkinization, i include the commendation, 'see, esp., the work of scott horton.'

thank you, thank you, thank you, sir! i share your outrage, your conclusions, and the hope you convey for "the justice which will in good time be meted out to those who betrayed a nation’s trust."


see, too, a recent speech by amnesty international executive director, larry cox: "The Global War on Terror and the Impact on Human Rights." (video available at cspan[dot]org)


"To initiate a war of aggresion. . . is not only an international crime, it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole." - Nuremberg Tribunal
 

JT Davis said...

Bart linking to Kos? Am I in an alternate universe?

How can I understand the opposition's thought processes unless I bother to read them?

You may recall this line from Sun Tzu's Art of War:

Know the enemy and know yourself; in a hundred battles you will never be in peril. When you are ignorant of the enemy, but know yourself, your chances of winning or losing are equal. If ignorant both of your enemy and yourself, you are certain in every battle to be in peril.

BTW, Bart, my kid was at Benning and SOA back in the early 90s when it still was SOA.

You should not have left your Sun Tzu, Hart and Clausewitz around for him to find. Now, look what happened!
 

Bart says:

"(As an aside, Lilburne's description of flogging provides a useful measure of what true torture is about - the intentional infliction of severe pain - and provides a useful contrast which shows that disorienting prisoners through sleep deprivation, loud noises, lights, temperature changes and even the 1-2 minute panic of waterboarding hardly rises to the level of torture.)"

Bart:

You are way out of your element here. I have no way of knowing whether your construction of the Three Spanish Sailors case and other unlawful combatants precedents from 200 years ago are correct. I do, however, know about torture law. Your post reflects a common misunderstanding (or perhaps, lie) peddled by conservatives about torture, and that is that it is hard to define and is left ambiguous under the law.

In fact, torture is defined in the Convention Against Torture, as the infliction of severe physical or mental suffering. Further, the definition ALSO appears in numerous areas of domestic law. Obvious examples include the Military Commissions Act and the Torture Victim Protection Act. But torture is also defined in numerous state laws. For instance, here in California, it is used as a sentencing enhancement.

The point is, as you might imagine, torture has received judicial construction on numerous occasions. And trust me, if, for instance, a criminal waterboarded his victim before killing him, he would get the sentencing enhancement. And if a foreign police service waterboarded someone, that would be actionable under the Torture Victim Protection Act.

You need to learn something about these precedents before you blithely declare what "true torture" is.
 

dilan:

Go ahead and post the US definitions of torture in the torture conventions and the MCA. They are nearly identical are the definition which I use here.

The examples given by Professor Horton in his post and jt in his posts all fit well within the above definitions of torture are the intentional infliction of severe pain.

The sentencing mitigators and aggravators in California have no bearing on the legal definition of torture as it applies to the federal government.
 

Yeah, Bart. And we still shoot civilians and women and children refugees. We do it in Somalia today.

Terror War III: U.S. Forces Capture, Render Refugees From Somali "Regime Change"

Just like we did it in Korea 60 years ago at No Gun Ri, and lied about it.

Letter reveals U.S. intent at No Gun Ri

By CHARLES J. HANLEY and MARTHA MENDOZA, Associated Press Writers
Fri Apr 13, 6:26 PM ET



Six years after declaring the U.S. killing of Korean War refugees at No Gun Ri was "not deliberate," the Army has acknowledged it found but did not divulge that a high-level document said the U.S. military had a policy of shooting approaching civilians in South Korea.


Ain't western civilization grand!

{I'm sure it was just an aberration, few rotten apples, an oversight, the document was lost, overlooked, etc.)

Preach it, Someone! Or we will do something awful to you, but we'll call it "Freedom and Democracy" so it will all be legal and above the waterboard!

Arne... Yaknow, I see no evidence that JT has underestimated his opponents. To the contrary, in fact....

We are all prone to overestimate Bart's capacity for "teh stooopid".
 

Bart says:

"The examples given by Professor Horton in his post and jt in his posts all fit well within the above definitions of torture are the intentional infliction of severe pain.

"The sentencing mitigators and aggravators in California have no bearing on the legal definition of torture as it applies to the federal government."

Bart, you are ignoring the points here. To be clear:

1. There are NUMEROUS cases interpreting the FEDERAL (i.e., Convention Against Torture)definition of torture, chiefly in the context of 28 U.S.C. Section 1350 cases as well as claims for withholding of deportation under the immigration laws. They REJECT the overly narrow construction of the definition of torture peddled by conservatives.

In other words, you think that Bart DePalma-- who as far as I can tell has NO knowledge of the body of law on what constitutes torture-- can read the federal torture statutes and opine about waterboarding without even researching how this EXACT language has been interpreted by numerous federal courts over almost 30 years.

I think that's really arrogant. I will concede you seem to know something about enemy combatant law-- though I have quite a different reading of many of the statutes and cases than you do. Nonetheless, you have clearly read them.

But I see no evidence that you have read Filartiga, or Kadic, or any of the numerous cases involving CAT withholding of deportation. You, like many conservatives, just want to declare that things "aren't torture" without even doing basic research on what is actually a pretty well-established and developed area of law.

2. Your judicial philosophy is curious. Statutes are interpreted by courts within the common law tradition. State authorities are persuasive authority. The fact that many states consider various acts to constitute torture would certainly be relevant to any federal judicial construction of the term.

Look, if you think that all you have to do is read the MCA and CAT definitions and decide, in your own mind, that waterboarding or sleep deprivation or cold cell is not torture, that may be fine for a Federalist Society convention, but it is not a serious legal argument. Indeed, if you tried to do that in court, you would be rebuked by the judge for lack of preparation.

I would suggest you read the cases in this area and then come back and tell us whether you still think that it is so clear that the Bush Administration's reputed interrogation tactics are clearly not torture. Or do cases only count when you can deploy them to defend Bush Administration positions, e.g., on enemy combatants?
 

[me, earlier]: I'd note parenthetically that the MCA set the bar for "torture" to "severe physical or mental pain or suffering" and raised the bar for "cruel or inhuman treatment" to be identical with "torture" (but absent the "torture" condition that "torture" be for "the purpose of obtaining information of a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind". IOW, "cruel or inhuman treatment" is just gratuitous "torture", according to the MCA.

But they are both "prohibited" the same, and the definition of one subsumes the other: If it's "torture", it is also "cruel and inhuman treatment" by the MCA's standards. The fact of the matter is that the arbitrary and unilateral redefinition by the U.S. of "cruel and inhuman treatment" is just to loosen the standards here to encompass what has happened previously (and make it "legal" ... and to encompass what the thugs in the maladministration intend to do again and again.

FWIW, I'd say that there's one pretty clear line: Gratuitous infliction of pain, or inflicting pain for the purpose of pain itself (other than "pain or suffering incidental to lawful sanctions", see MCA § 6), ought to be banned by any civilised society. Setting the bar on this at "severe physical or mental pain or suffering" is unnecessary and way too permissive.

Allowing lesser degrees of pain or suffering that is not gratuitously inflicted leaves few legitimate rationales for doing so. The primary one (perhaps the only one outside of simple thuggery, brutishness, or inhumanity) is the Jack Bauer doctrine: What's a little pain suffered by a "baddie" compared to a million lives saved? I've covered this excuse and the legitimate options I see here a long time ago. I still say that there is no legitimate justification for inflicting any level of unnecessary pain (e.g., that unnecessary for restraint or safety) for any purposes whatsoever. Those that disagree, if they have the courage of their convictions, ought to be willing to pay the consequences themselves for what they do to others.

Setting the bar this high for purposes of allowing some infliction of pain for purposes extracting a confession, or coercion, is to contradict both the letter and the spirit of the Genevan Conventions. The U.S. gummint (in particular, the maladministration) has no intention of honouring the Geneva Conventions nor any other laws or caselaw on the subject (see Dilon's post). They think "rules" are for sissies ... just look at their "politics".

Cheers,
 

I just found Balkinization today and am just fascinated by the level of intelligence and discourse it contains.

However, who is "Bart" and why is he cluttering what is otherwise a really well-done website?
 

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