Balkinization  

Tuesday, May 29, 2007

One of Those Rare Instances in Which the Nazi Analogy is Unavoidable

Marty Lederman

Andrew Sullivan describes the uncanny and chilling correspondence between the Gestapo's "enhanced" (or "sharpened") interrogation techniques, and those that have been officially authorized and used by the United States over the past few years. Not only are the techniques, and the nomenclature, of a piece -- but so are the legal and ethical justifications offered in their defense.

In general, I'm a big believer in Godwin's Law. And the fact that what we're doing is eerily reminiscent of the Gestapo -- and of conduct that the United States has readily and uncontroversially deemed "torture" and war crimes when employed by repressive regimes (and U.S. forces) in the past -- should not be the final word, cutting off all further discussion. Of course, the fact that the Gestapo did something -- even something that was treated as a war crime -- does not necessarily mean that it is wrong or that we should condemn it.

But surely it ought to give one pause. And make one wonder about a major political party debate in which the candidates eagerly brag of their willingness to emulate the Gestapo -- and in which the audience lustily cheers them along.

Andrew Sullivan:
Critics will no doubt say I am accusing the Bush administration of being Hitler. I'm not. There is no comparison between the political system in Germany in 1937 and the U.S. in 2007. What I am reporting is a simple empirical fact: the interrogation methods approved and defended by this president are not new. Many have been used in the past. The very phrase used by the president to describe torture-that-isn't-somehow-torture - "enhanced interrogation techniques" - is a term originally coined by the Nazis. The techniques are indistinguishable. The methods were clearly understood in 1948 as war-crimes. The punishment for them was death.
One other thing, of a more legal nature:

As Andrew has argued repeatedly, and as Greg Djerejian has recently explained, some of these techniques do constitute "torture" under federal law, at least in some circumstances. Unfortunately, however, Congress imposed some limiting elements on the statutory definition of torture that are not found in international law, which makes the legal question in some cases more complicated than it ought to be; and, more importantly, OLC has gone even further, and come up with a reading of the torture statute under which even waterboarding would not be torture -- a reading that I've argued is plainly wrong.

Be that as it may, however, Andrew and Greg are asking the wrong question. Metaphysical and political debates about where, exactly, the line is between torture and quasi-torture may matter for purposes of criminal penalties. But such line-drawing is unnecessary if the primary question is, as it should be, whether the President can authorize the CIA to use these techniques going forward.

Even if some of these techniques are arguably short of legally defined "torture" in some cases, surely they are the sort of "cruel treatment" that the Geneva Conventions prohibit -- particularly when one recalls that those treaties were written largely with Germany's practices in mind. (The techniques might also, at least in many cases, violate the federal assault law and the McCain Amendment, as well.) And therefore the techniques are plainly unlawful -- and a President committed to faithful execution of the law would not authorize their use by the CIA -- whether or not they are subject to the criminal sanctions reserved for "torture" as such.

Comments:

Over the weekend I re-read Mark Twain's War Prayer. Excerpted here:

"O Lord our Father, our young patriots, idols of our hearts, go forth to battle -- be Thou near them! With them -- in spirit -- we also go forth from the sweet peace of our beloved firesides to smite the foe. O Lord our God, help us to tear their soldiers to bloody shreds with our shells; help us to cover their smiling fields with the pale forms of their patriot dead; help us to drown the thunder of the guns with the shrieks of their wounded, writhing in pain; help us to lay waste their humble homes with a hurricane of fire; help us to wring the hearts of their unoffending widows with unavailing grief; help us to turn them out roofless with little children to wander unfriended the wastes of their desolated land in rags and hunger and thirst, sports of the sun flames of summer and the icy winds of winter, broken in spirit, worn with travail, imploring Thee for the refuge of the grave and denied it -- for our sakes who adore Thee, Lord, blast their hopes, blight their lives, protract their bitter pilgrimage, make heavy their steps, water their way with their tears, stain the white snow with the blood of their wounded feet! We ask it, in the spirit of love, of Him Who is the Source of Love, and Who is the ever-faithful refuge and friend of all that are sore beset and seek His aid with humble and contrite hearts. Amen.

(*After a pause.*) "Ye have prayed it; if ye still desire it, speak! The messenger of the Most High waits!"

It was believed afterward that the man was a lunatic, because there was no sense in what he said.
 

AS: "Critics will no doubt say I am accusing the Bush administration of being Hitler. I'm not. There is no comparison between the political system in Germany in 1937 and the U.S. in 2007."

There is no comparison? It wasn't until '38 that Kristallnacht happened, until the deportations started. In '37, Jews in Berlin still went about their business, in a constrained manner with specters of danger all around, but still basically normally. The intelligentsia hadn't abandoned the country yet.

The problem with Godwin's law is that no one recognizes how normal most of German life was until the start of WWII. Yes, race laws were put into place - but those were little different from American race laws which were in place in many regions until the 50's and 60's. Eugenics laws were only taken off the books in some states in the 70's.

Yes, we are quite distinct from 1937 Germany - but we are also quite distinct from numerous societies. But this automatic claim that we are completely different actually does require argument, rather than the knee-jerk response of "of course we are different".

In fact, most Germans throughout the 30s wouldn't recognize what their society was becoming before their eyes - it didn't affect their business at the corner store, their mail delivery or their relations with their neighbors until 38. For those who weren't politically active, the most they felt was a general repression to speak out in public, that there were repercussions to saying out loud "unpatriotic" thoughts.
 

while I have little doubt that both Bart and Charles would have been enthusiastic members of the Hitler Youth Brigade, i wonder whether at the end they would have resorted to the "just following orders" mantra, in order to save/justify themselves, or they would go down with the ship.

i suspect the latter.

dead-enders go down with the ship.
 

Violence is the last resort of the incompetent - Isaac Asimov
 

A curious thing about Godwin's law is its selective enforcement, at the hands of prosecutors with a decidedly Republican slant. Dick Durbin was charged with violating it when he struck up an association between Nazi Germany and Guantanamo abuses. If Sullivan is right, Durbin's crime was that he did not make the abuses as uncannily redolent as he might have, not that he failed to hoist the right warning flag.

In the moment the charge was used to divert attention from the abuses and to accuse Durbin of disbelief in his nation and a failure to follow Duncan Hunter's reading of the Guantanamo menu, with its rice pilaf and other succulent offerings to the detainees.

At around the same time the Bush administration was settling on "fascist" to label Islamist extremists. The term makes no sense under Robert Paxton's analysis of fascism, according to which the phenomenon is peculiar to faltering constitutional democracies in a state of crisis. Recall further how Rick Santorum lavished "Nazi" on miscellaneous viewpoints against which he sought to run in his re-election bid.

The strategy is plain: Take a term that might be used against you – in this case because of your systematic assault on civil liberties – and deny others its use even as you appropriate it for your own use against enemies foreign and domestic, blurring the distinction whenever possible to create the image of an un-American fifth column, witting or otherwise. This achieves three goals: you escape scrutiny; you cow your opponents; and you rob the term of any sensible meaning, which comes in handy in case, despite your best efforts, scrutiny suffers an uptick.

We've seen other examples of this. The latest is "voter fraud." Before that there was "class warfare." One can generate a host of such cases because the tactic is tailor-made for the game underway. It's remarkable that a website frequented by persons knowledgeable about the peculiar hazards of prosecutorial discretion should salute Godwin's law with such fervor.

To bring the point further home, another feature of Paxton's analysis is that fascism is intensely situational, homegrown out of the particulars of the moment – an opportunist's dream that does not travel well. This, taken together with its emergence from a nominally democratic matrix, make it hard to see coming and easy to blunt analogies. A corollary of his analysis is thus that, while any term can be overused, the chief beneficiaries of Godwin's law are would-be fascists.

For a time I found it useful to post examples of the Bush administration's attempts to coordinate opinion in the press, between regulatory agencies and the industries they purport to control, and among party operatives. The examples of this are legion – the "talking point" is by now routinely noted; clampdowns on whistleblowers and scientists who think for themselves are old hat; inducements to the media to conform to the government's viewpoint are tiresome stuff. It's done differently in each case. Goebbels confronted the same situation in 1933. But he coined a term for the common objective: Gleichschaltung. It means coordination, a term that peppers the May 9 National Security and Homeland Security Presidential Directive, which, it has been noted, leaves the other branches strikingly out of the effort.

It was no accident that Sinclair Lewis called his 1930's novel "It Can't Happen Here." A more prescient title might have been "Godwin's Law."
 

"The Homeland" has always been the expression that chills the spine.
 

Professor Balkin:

Of course, the fact that the Gestapo did something -- even something that was treated as a war crime -- does not necessarily mean that it is wrong or that we should condemn it.

But surely it ought to give one pause. And make one wonder about a major political party debate in which the candidates eagerly brag of their willingness to emulate the Gestapo -- and in which the audience lustily cheers them along.


After condemning the guilt by association smear in your first paragraph quoted above, you turn right around and employ this smear in the next paragraph.

The Gestapo used the full range of interrogation techniques, from simple questioning to actual torture. Therefore, you can make this invalid guilt by association attack equally against your average police detective as you can the CIA and against the Dems as well as the GOP.

Sullivan also makes several invalid comparisons between CIA coercive interrogation techniques discussed here and the criminal acts of genuine torture such as beatings committed by the Nazis against the Norwegians and by some of our own forces in Afghanistan and Iraq, for which several perpetrators have been prosecuted.

Even if some of these techniques are arguably short of legally defined "torture" in some cases...

None of the disclosed coercive methods would appear to fall under the legal definition of torture. Indeed, most fall far short of that definition.

...surely they are the sort of "cruel treatment" that the Geneva Conventions prohibit...

Many would be barred for lawful combatants who fall under the definitions in the Geneva Conventions. However, the CIAs coercive interrogation techniques are not employed against lawful enemy combatants who fall under the Geneva Conventions.

The techniques might also, at least in many cases, violate the federal assault law

Coercive interrogation of unlawful foreign enemy combatants during a war no more falls under the domestic assault laws than killing the enemy during a war falls under domestic homicide laws.

and the McCain Amendment, as well.

To the extent that the McCain Amendment applies and is different that the MCA. the later enacted MCA would appear to take precedence. The MCA merely repeats the definition of torture which existed under the international torture conventions - the intentional infliction of severe pain.
 

None of the disclosed coercive methods would appear to fall under the legal definition of torture. Indeed, most fall far short of that definition.

Since the memo "establishing" the legality of waterboarding, etc. has never been made public, it would appear that there are no "disclosed" methods, unless we count news reports.

But if BDP means to include those, and to claim ONE MORE TIME that waterboarding, forced standing, hypothermia, etc. aren't torture ... whom does he expect to convince? Hasn't that claim been knocked out of the park 20 times at this blog?

I would like Mr. DePalma to state expressly that he is not paid or otherwise compensated to post comments here.
 

Anderson said...

BD: None of the disclosed coercive methods would appear to fall under the legal definition of torture. Indeed, most fall far short of that definition.

Since the memo "establishing" the legality of waterboarding, etc. has never been made public, it would appear that there are no "disclosed" methods, unless we count news reports.


Is there a reason not to credit the leaks reported in the press to which Professor Balkin linked and the CIA's own interrogation manual to which I linked?

If your contention is none of these sources is accurate and we do not know what coercive interrogation techniques involve, then we might as well simply admit we do not know what we are talking about and adjourn the debate.

But if BDP means to include those, and to claim ONE MORE TIME that waterboarding, forced standing, hypothermia, etc. aren't torture ... whom does he expect to convince? Hasn't that claim been knocked out of the park 20 times at this blog?

Actually, the vast majority of posts here and those linked from here generally assume the fact that coercive interrogation techniques = "torture" without actually applying the legal definitions of torture to the facts as we know them and providing some context against actual examples of torture. I attempted to provide such an analysis in my blog entry linked above.

I would like Mr. DePalma to state expressly that he is not paid or otherwise compensated to post comments here.

:::chuckle::::

I am not paid to grace you with my humble opinions. Rather, I lose billable time in doing so.
 

BDP:Many would be barred for lawful combatants who fall under the definitions in the Geneva Conventions. However, the CIAs coercive interrogation techniques are not employed against lawful enemy combatants who fall under the Geneva Conventions.

The problem with this assertion is that all combatants, lawful or not, are EXPLICITLY included under Protocol 1 of the Geneva Conventions (see articles 45 and 75).

BDP:However, the panic induced by waterboarding is extremely brief and and can hardly be considered a "prolonged" mental harm

The duration of the abuse is arguably irrelevant. Explicit descriptions of inappropriate behavior often emphasize that the legality of the action is not contingent upon its duration.

From the "Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment":

The term "cruel, inhuman or degrading treatment or punishment" should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.

Under those conditions, Guantanamo has been violating international law from the moment the prisoners arrived.
 

PMS_Chicago said...

BDP:Many would be barred for lawful combatants who fall under the definitions in the Geneva Conventions. However, the CIAs coercive interrogation techniques are not employed against lawful enemy combatants who fall under the Geneva Conventions.

The problem with this assertion is that all combatants, lawful or not, are EXPLICITLY included under Protocol 1 of the Geneva Conventions (see articles 45 and 75).


OK, let us take a look at these articles:

Article 45.-Protection of persons who have taken part in hostilities

1. A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal...

Article 75.-Fundamental guarantees

1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:

(a) Violence to the life, health, or physical or mental well-being of persons, in particular:

(i) Murder;

(ii) Torture of all kinds, whether physical or mental;

( iii ) Corporal punishment ; and

(iv) Mutilation;

(b) Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;

(c) The taking of hostages;

(d) Collective punishments; and

(e) Threats to commit any of the foregoing acts.


Article 45 simply states that captures are entitled to a status hearing if they claim to be POWs (i.e. lawful combatants) or if it is apparent that they are POWs. None of the captures of which I am aware has claimed that they are lawful combatants. Rather, they claim to be civilians. al Qaeda and the Taliban do not claim that their people qualify as POWs Nor is it apparent that combatants captured in civilian clothing are POWs. Therefore, there is no presumption that they are POWs and certainly none after the Combatant Status Tribunal finds them to be unlawful enemy combatants.

Article 75's list of prohibited acts do not include any of the coercive interrogation techniques because they do not fall under the definition of torture.

BDP:However, the panic induced by waterboarding is extremely brief and and can hardly be considered a "prolonged" mental harm

The duration of the abuse is arguably irrelevant.


As I discuss in my linked blog post, 18 U.S.C. § 2340(2) defines defines "severe mental pain" as "prolonged mental harm."

From the "Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment"

This is a UN resolution, not international law.
 

shorter Bart:

some people have rights and some don't. it's really that simple.
 

Bart, are you going to claim that waterboarding does not even rate as "corporal punishment"? Because that is among the thing "prohibited at any time and in any place whatsoever" under Article 75.
 

Does Godwin's Law apply to comparisons to Stalin as well as to Hitler? Because cold cell, long time standing, stress positions and especially sleep deprivation were among his favorite techniques as well. And for much the same reason, they did not leave scars, and you could always say they were not really torture.

As for whether such techniques rate as true torture or merely abuse or mistreatment, I would say it depends on how severely they are applied. The line is not always a clear one.

But I would say it is time to stop parsing fine distinctions between what is true torture and what is merely "cruel, inhumane and degrading" and say that we don't care where the line is, because either way it is not acceptable.
 

@EL,

Yeah, those techniques ain't torture. Other than prolonged application has been known for more than half a century to lead people insane. Just like sensory deprivation isn't torture - even though there is endless evidence that fairly short stints of sensory deprivation and isolation cause permanent psychological trauma.

Don't let the Bart's of the world frame this one! Coercive techniques that are well known to result in permanent psychological damage are torture.

Which would you rather have done to you: have 10 cigarettes put out on your skin, or be put in sensory deprivation for three days? If you answer the latter and haven't had years of meditative training, you answered wrong.

Never forget Orwell's rat cage.
 

Enlightened Layperson said...

Bart, are you going to claim that waterboarding does not even rate as "corporal punishment"? Because that is among the thing "prohibited at any time and in any place whatsoever" under Article 75.

Most definitely. Corporal punishment is the infliction of pain through beatings.
 

I was going to reparse for Bart, but found this in rereading the conventions:

Chapter IX. Repression of Abuses and Infractions

Art. 49. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following, of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949.

Art. 50. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.


Then article 105:
Art 105. The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial.

Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel, and shall have at least one week at its disposal for the purpose. The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to present the defence. Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the Detaining Power shall appoint a competent advocate or counsel to conduct the defence.

The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare the defence of the accused. He may, in particular, freely visit the accused and interview him in private. He may also confer with any witnesses for the defence, including prisoners of war. He shall have the benefit of these facilities until the term of appeal or petition has expired.

Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power, shall be communicated to the accused prisoner of war in a language which he understands, and in good time before the opening of the trial. The same communication in the same circumstances shall be made to the advocate or counsel conducting the defence on behalf of the prisoner of war.

The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless, exceptionally, this is held in camera in the interest of State security. In such a case the Detaining Power shall advise the Protecting Power accordingly.


Article 49 (and the preceding articles) does not create exceptions for those who are not members of a protected class (POWs and civilians) or members of High Contracting Parties. This strongly suggests that detainees who are "unlawful combatants" are subject to the laws of the capturing state--with all that entails regarding trial and punishment. However, at the worst such detainees are subject to the punishments in force for the armed forces of the capturing power.

So basically, they are effectively criminals subject to punishment--and should be treated as such since we are party to these portions of the Geneva Conventions. They are entitled to trial and defense, and not to coercive treatment. Since we ratified these conventions, they are our law, and the administration's failure to implement them for years (prior to Bart's vaunted MCA) means that our executive can be considered guilty of violating these Conventions.
 

IC that "Bart" is up to the same ol' "torture is good"/"it's not 'torture'"/"there's a neat little loophole where anyone that Dubya sez is an 'illegal enemy combatant' falls so we can do anything to them that our little hearts desire" crapola.

The inhumanity appalls and sickens me. Our troops and contractors have beaten to death captives. "Bart" applauds it all, just as the Republicans did at the debate. "Bart" no longer deserves even a civil response on this blog ... past the evasions, the lies, and the sophistry, and the sycophancy, nauseating in itself ... "Bart" has shown himself to be a ready candidate for the Sturmabteilung. And should be treated as such.

Cheers,
 

Fraud Guy:

The commentary on Articles 49 & 50 do not add anything to our discussion. Everyone agrees that torture is illegal. The issue is whether the CIA's coercive interrogation techniques meet the legal definitions of torture.

Article 105 discusses the right to representation for captured enemy in a war crimes trial. These rights and more are granted to enemy combatants by the MCA.

There is no requirement to assume that captured enemy combatants will be tried for war crimes and to treat them as de facto criminal defendants. In fact, it is comparatively rare for a capture to be tried as a war criminal. I believe the US has only teed up a handful of the worst al Qaeda for military tribunals.
 

Bart,

I believe they do. Among the crimes are "willful killing" which I would believe would apply to the terrorist attacks, as they fall outside of permissible actions (as do the methods of the terrorists) within the conventions. Once captured, under 105, those who are accused of such acts can be tried under the laws of the holding country, which may decide to use their military process. All such accused are entitled to at least the minimum protections of the Geneva Conventions, contrary to your claim that the CIAs coercive interrogation techniques are not employed against lawful enemy combatants who fall under the Geneva Conventions. They're still covered.

Now to bring this into context with your claims, those held at Guantanamo or our other covert prisons (or rendered to other countries for special treatment)have not been given at least those basic protections (whether or not they give them to others, which is covered under the sections above), and were not tried under the laws or military justice of the holding power (us). Yes the MCA (which is a latecomer to the fray) might be considered to cover this, but that is like closing the barn door after the horses have left. We had laws in place to cover these detainees, but refused to apply them. Why were we contravening the protocols of the Geneva Conventions for years? Isn't the right of a speedy trial covered under our own system of laws and military justice systems? You may feel that they are not covered, but the plain text of the Conventions (which are part of our law due to ratification) says they are.
 

Bart:

What case authority are you relying on, under American or international law, for your determination that waterboarding, prolonged cold cell (i.e., induced hypothermia), or stress positions, all previously used in the CIA program, are not torture? Or are you just basing this on your own opinion without reference to any case authority?
 

Dilan said:

Bart: What case authority are you relying on, under American or international law, for your determination that waterboarding, prolonged cold cell (i.e., induced hypothermia), or stress positions, all previously used in the CIA program, are not torture? Or are you just basing this on your own opinion without reference to any case authority?

Sub-aether transmissions from the planet Thantos from the galaxy Onceuponatime. Picked up via tin-foil hat. Get yourself one and you too can tune in to the Voice Of Ultimate AUTHORITY too....

Cheers,
 

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