If you stick someone with pins to make him talk, you are torturing him. That doesn't make acupuncture a form of torture. There are things that a chiropractor does that, done to extreme, are torture. US troops are routinely subjected to a mild version of waterboarding to prepare them for capture and interrogation, and the US doesn't torture its own soldiers. So waterboarding can be a form of torture if carried far enough (as can lots of other things), but it can also be demonstrated in ways that clearly are not torture. You have to know how it was carried out to make the final determination. That is all that Mulkasey said. He did not say that US uses of the technique were not torture, but just indicated that he did not have the information. I am not shocked that Judge Mulkasey showed judicial temperament by not letting his conclusions get ahead of the evidence. Every judge should be that careful.
 

Also debatable, and thus nothing that Judge Mukasey should condemn without all the facts before him:

the rack -- if turned just a teensy bit, it's actually quite relaxing!

starvation -- can be slimming!

sleep deprivation -- lets you catch up on paperwork!

forced nudity -- the hippies didn't mind it at Woodstock!

reading half-baked apologia for torture -- readers of Balkinization comment threads voluntarily subject themselves to it all the time, so how bad can it be?
 

Your German colleague is right, and your explanation is right, too. The moment Mukasey said he didn't know whether water-boarding is illegal was the moment for Leahy to say, "Get lost -- you're obviously not fit to be Attorney General." But Leahy didn't say that. Our entire national discourse has descended into the absurd. Wake up, people.
 

I've already opined on another thread that if Mukasey can't answer such questions, he ought to perhaps find a different line of work....

Cheers,
 

Delicious snarcasm as usual, Anderson.

Here's my explanation for Mukasey's comments: he wasn't willing to call waterboarding torture because he wasn't willing to cross the administration's position lest his nomination be withdrawn. I don't buy for a second that his motivation was judicial integrity.

As for the Dems and public allowing this to take place, I think Brian's explanation fits the facts as I understand them.
 

Having your country, within living memory, descend into a totalitarian nightmare, complete with human skin lampshades and exterminations camps raises the political saliency of torture a great deal. That's why it's so much bigger a deal in Germany than the US.

The average citizen just doesn't see much prospect of torture being used on anyone they know if the AG is a bit dodgey on the subject. It's the downside of a relatively unhorrific history.
 

Senator Leahy (or any other Senator) would have a hard time pushing the point too far, seeing as how the limits of damage that represent the LEGAL definition of torture and cruel and inhuman, as recently passed by Congress as part of the Military Commissions Act, lie beyond the damage caused by waterboarding.
.
While many people view waterboarding as torture, in the US, it is not "legally torture" nor is it legally "cruel and inhuman," unless the damage to the subject crosses the statutory boundary. And, if it's legal, it must be constitutional ... or at least until tested and found otherwise by a Court.
.
Congress is complicit, not only enabling waterboarding, but implicitly endorsing it and any other practice that falls short of the harm defined by duly-passed legislation.
 

He asked me how the candidate to become the top legal official of the U.S. government could say that he does not know whether water-boarding constitutes "torture" (as Judge Mukasey stated yesterday in his confirmation hearings). My colleague insisted that in Germany any person who uttered such a statement would be finished. He found it shocking that a person could say this in America and still become our Attorney General.

That is because what the Germans say in public and what they do in private are two very different things.

In public, the Germans would never admit that they would use water boarding on a terrorist.

In private, the German government was one of the more active participants in rendering terrorists out of their country to places which do far more than water boarding.

Hell, the German polizei (police) will beat the living tar out of you with batons during a criminal investigation if you give them any resistance. We had to brief our soldiers that giving the polizei their usual American attitude will get them in a world of hurt.

As for the American people, most of us can distinguish between severe pain and lesser things as water boarding. We can also distinguish between a civilian criminal defendant or a captured soldier and a terrorist in civilian clothing committing mass murder.

Because most American voters can make these distinctions and because the Dems are first and foremost about gaining and retaining political power, the Dems are not going to push their minority view of treating terrorists as civilian criminal defendants or lawful POWs.

The reasons the Dems fold like tents on national security are in equal measures political reality and rank cowardice.

The Dems' new and very slim majority was achieved by Dem candidates running in 2006 as moderates or conservatives in moderate to conservative Red districts while Pelosi and Reid literally hid in the two weeks running up to the election. Consequently, as demonstrated by the GOP consistent ability to prevail on FISA and Iraq legislation, the leftist Dem leadership may have a nominal party majority, but not one which shares their priorities. The so called Blue Dog Dems have and will continue to consistently vote with the GOP on national security issues if they hope to get reelected.

The center right majority in this country has not gone away. Rather, a few of them gave a new brand of the same detergent a chance in 2006.

Then there is simple cowardice. I have no idea why anyone who voted the Dems because they promised to surrender in Iraq would think that they would not surrender whenever they met any other adversity. Elections have consequences.
 

I really think Judge Mukasey is a good man, too. It's really hard for me to wrap my mind around how we've come to this point.
 

Senator Leahy (or any other Senator) would have a hard time pushing the point too far, seeing as how the limits of damage that represent the LEGAL definition of torture and cruel and inhuman, as recently passed by Congress as part of the Military Commissions Act, lie beyond the damage caused by waterboarding.

According to the torture bill's principal sponsor, you are wrong:

"A Republican senator who played a leading role in drafting new rules for U.S. interrogations of terrorism suspects said yesterday that he believes a compromise bill embraced by party leaders and the White House will bar some of the most extreme techniques said to have been used by the CIA.

Sen. John McCain (Ariz.) named three measures that he said would no longer be allowed under a provision barring techniques that cause serious mental or physical suffering by U.S. detainees: extreme sleep deprivation, forced hypothermia and "waterboarding," which simulates drowning. He also said other "extreme measures" would be banned." Cite.

Odd that Judge Mukasey didn't read that article.
 

You could have told your Teutonic buddy that Americans don't believe that any treatment that members of the US military endure in training constitutes torture. See this description of being waterboarded by one participant of military SERE training. http://www.blackfive.net/main/2005/12/us_military_run.html

Your German friend should have been informed that even Democrats don't openly advocate treating terrorists better than members of the American military are treated. They "support the troops," remember?

Posts like this one indicate how much more academics would know about the world outiside of the academy if they were exposed to more members of the US military on campus. Ah, "diversity."

From the link above:
"This is where I caved and I didn't even get strapped to a board. Nope a canvas bag over the head and water continually dripping over my face triggered a visceral fear I have of drowning and I started screaming, crying and signing. If I had any information period that would have made them stop it, I would have told them. The human will is strong, but it can be broken without having to break the mind or body, you just confuse and degrade it, and play mind games with it's owner until finally the ability to resist is gone. That is the whole point of coercive interrogation, breaking the human will to resist which is an artificial construct of each individual. Find their weakest area, exploit and overload the brain and body and eventually the brain will overrule the will and survival instinct will cause cooperation to make it stop.

Tens of thousands of troops have been through this training and yet somehow the idea that we do these same things to the scum who murder innocents in order to protect innocents is beyond the pale. BS. Why don't we just institute the jihadi draft, make them members of the military and give them a little Resistance love. They have earned it and we can't afford to miss a single tidbit of intel that could help us send more of them along to Allah."
 

I've wondered aloud what Senator McCain's reaction will be if and when he figures out that his interpretation (no waterboarding) isn't shared by the administration.
.
I followed the action and compared the language in the various amendments as the bill was being negotiated between McCain, Warner, and the administration. McCain's proposed language wasn't objectionable to the administration, but McCain's language did not provide the statutory definitions that eventually were passed into law. If McCain thinks the law he helped pass forbids waterboarding, well bless his heart for that.
.
The administration insisted on, and obtained, definitions of war crimes that includes reference to 18 USC 2340 and 18 USC 113 as "the limits," that must be crossed in order to create a war crime.
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A person who performs waterboarding for the US is at negligible risk of committing a war crime under US statutory law. The simulated drowning would have to be repeated or sustained to the extent it caused death or permanent impairment of lung function.
 

Senator Leahy (or any other Senator) would have a hard time pushing the point too far, seeing as how the limits of damage that represent the LEGAL definition of torture and cruel and inhuman, as recently passed by Congress as part of the Military Commissions Act, lie beyond the damage caused by waterboarding.

Sorry, no sale. Torture-- as defined in the MCA-- includes any act that results in severe mental suffering other than that incident to lawful penal sanction. Waterboarding clearly inflicts severe mental suffering.
 

As for the American people, most of us can distinguish between severe pain and lesser things as water boarding.

Bart, once again you are lying about the definition of torture. It is not "severe pain". It is "severe mental or physical pain or suffering". And once you apply the correct definition, waterboarding clearly is torture.
 

You could have told your Teutonic buddy that Americans don't believe that any treatment that members of the US military endure in training constitutes torture. See this description of being waterboarded by one participant of military SERE training.

That's just a dumb Republican talking point. The fact that the US military uses the technique TO TRAIN PERSONNEL TO RESIST TORTURE hardly proves that it isn't torture.
 

Then there is simple cowardice. I have no idea why anyone who voted the Dems because they promised to surrender in Iraq would think that they would not surrender whenever they met any other adversity. Elections have consequences.

The Democrats did not promise to surrender in Iraq. They promised to withdraw. Bart, will you for once in your life present the opposition's argument without spinning?
 

-- Sorry, no sale. Torture-- as defined in the MCA-- includes any act that results in severe mental suffering other than that incident to lawful penal sanction. Waterboarding clearly inflicts severe mental suffering. --
.
I urge you to read the statutory language carefully before you endorse it. Pay attention to words such as "prolonged."
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Just because one may personally think that waterboarding is torture doesn't mean that waterboarding satisfies the legal criteria set forth in the statute -- not for torture (which has mens rea elements) nor for cruel and inhuman.
.
If you think the definitions are fine, after you read them, okay by me. But don't come complaining when the courts say just what I did ... waterboarding doesn't cross the line.
 

dilan said...

BD: As for the American people, most of us can distinguish between severe pain and lesser things as water boarding.

Bart, once again you are lying about the definition of torture. It is not "severe pain". It is "severe mental or physical pain or suffering". And once you apply the correct definition, waterboarding clearly is torture.

I am not repeating the full statutory definition every time we discuss this issue. Severe pain includes both physical and mental and suffering is synonymous with pain.

A minute or two of panic induced by water boarding is not severe physical or mental pain.

BD: Then there is simple cowardice. I have no idea why anyone who voted the Dems because they promised to surrender in Iraq would think that they would not surrender whenever they met any other adversity. Elections have consequences.

The Democrats did not promise to surrender in Iraq. They promised to withdraw. Bart, will you for once in your life present the opposition's argument without spinning?

Actually, the official Dem spin term is "redeployment" of the troops, not withdrawal, which sounds too much like retreat, which implies and conveniently rhymes with defeat.

The GOP spin term is "retreat and defeat."

Neither one of those spin terms is quite accurate and correctly reflects the self imposed defeat the Dems are proposing. The only term which describes self imposed defeat is "surrender."

If you can find a more accurate term for self imposed defeat than surrender, feel free to post it.
 

A summary of a couple of the important legal definitions that appear in the war crimes statute:
.
Before the new legal standard of "serious harm" was negotiated, the harm to the subject had to be "severe," which roughly translates to PROLONGED mental or PERMANENT physical damage.
.
Under the new legal standard, "cruel and inhuman" lacks the "intent" and "for the purpose" mens rea elements required to find torture, and in that the eventual MENTAL harm must rise to the level of "serious," which means it:
* "must be serious [circular] and non-transitory (which need not be prolonged)."
.
I don't know how a court might construe the difference between "serious" and "severe," i.e., the difference between "prolonged" and "non-transitory (which need not be prolonged)."
 

If you can find a more accurate term for self imposed defeat than surrender, feel free to post it.

# posted by Bart DePalma : 9:14 PM

I know the perfect term for self-imposed defeat:

MISSION ACCOMPLISHED

2 words the Republican party is going to take a long, long time to live down.
 

Can we be serious here? George Bush is never going to apppoint anyone for Attorney General who doesn't favor waterboarding, black sites, extraordinary rendition, warrantless surveillance, etc. We can either make a candidate tell a bunch of lies and make a bunch of evasions as a condition for confirmation, or we can reject every single nominee and leave the office vacant until 2009. There is no other option.
 

Enlightened Layperson: There is one other option: to impeach Bush. That, in fact, is the only option. To even consider any nominee of Bush's for any office is to acknowledge Bush's right to continue as president, and to acknowledge his right to continue as president is to acknowledge his right to torture, to imprison people forever without filing charges, and to commit all the other crimes that he has committed. Not to impeach him makes Congress his accomplice.
 

cboldt:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Find the word "prolonged". It's not there. John Yoo and Jay Bybee made that up.
 

Before the new legal standard of "serious harm" was negotiated, the harm to the subject had to be "severe," which roughly translates to PROLONGED mental or PERMANENT physical damage.

No, it doesn't. The suffering felt by those on a plane that crashes soon after takeoff is severe. It is not prolonged.
 

I am not repeating the full statutory definition every time we discuss this issue. Severe pain includes both physical and mental and suffering is synonymous with pain.

No, Bart, you are being dishonest. Saying "severe pain" makes the definition sound completely inapplicable to mental suffering.

As for what term you should use for Democrats' proposals, how about "troop withdrawals"?
 

Your answer may be given in two words: "outrage fatigue."

Bush has broken so many laws, violated so many norms-- and we have been so powerless to resist-- that we have lost all capacity to mobilize. If it's not blatantly illegal warrantless wiretaps, its manifest torture or abducting people and holding them without trial or manipulation of the Department of Justice for partisan ends or outright lying to the American people in the run-up to war. We have whiplash, and at every turn these actions are defended by powerful men whose vested interest is protecting the administration no matter what-- and these, in turn, are supported by a vast party machine that cannot afford for us to process the full scope of these horrors. They bluster and ride it out until the next outrage comes along.

Our society has become terrifyingly dysfunctional.
 

-- Find the word "prolonged". It's not there. --

.

P.L 109-366 recites: "(A) the term `severe mental pain or suffering' shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340(2) of this title"

.

By golly, you're right. It's not there. Maybe you could look at 18 USC 2340(2). Or not, if you'd rather abort the review before asserting a conclusion you prefer to reach. I get the point. You think the statute is fine. Congress has done a great job. No sweat. I disagree with that, but that's just because my opinion is different from yours in that regard.
 

cboldt: ... roughly translates to PROLONGED mental or PERMANENT physical damage.
.


-- No, it doesn't. The suffering felt by those on a plane that crashes soon after takeoff is severe. It is not prolonged. --

.

Notice the "or" between two different types of harm? Those on a plane that crashes frequently suffer permanent physical damage, sometimes to the point of death.

.

Do survivors of plane crashes have prolonged and serious mental damage? I'm sure some do, e.g., the co-pilot who was the sole survivor and feels terrible guilt for his contribution to using the wrong (short) runway.

.

At any rate. I did point out that it was a rough paraphrase. And I have no problem that you hold the paraphrase to be in error. Others might take the time to read the statutory references and ponder the (I think radical) changes to the war crimes law that Congress introduced in September 2006.
 

Even under the definitions in the September 2006 law waterboarding is torture. The "prolonged" - the waterboarding is the physical and the up to, during, and after of the water boarding is the mental. Prolonged can be a second or it can be a number of years. Reducing someone to a pile of human flesh from their fear induced by the threat of, the during, or the result of the waterboarding - good enough for the standard unless we have fascist juries and courts in which case all is lost already. In that case, please open the gates of the gulags so that any of us who dissent from this barbarity can go to our cells to be tortured as prisoners without names in cells without numbers.

As to those who argue that because the SERE training on soldiers includes waterboarding - ergo waterboarding can not be torture because we do not torture our soldiers - they are missing the point. The SERE training is to try to help soldiers survive if captured. No SERE training person could seriously believe that that treatment is not torture unless they are in some kind of denial that ignores 100 years of US court decisions (see Evan Wallach's article in the Columbia Journal of Transnational Law this year) and 500 years of history with water torture.

The sad thing is that I have to write this stuff because there are people in such denial about all this that they really think that there is some kind of legal definition that is written in our law that would make this not torture. It does not work.

Obfuscating like this about the legal standard is really more about trying to give cover to people who will try to say that they "reasonably relied" on legal opinions that were in fact done as part of the effort to subvert the law and not comply with it. It will not work as regards me and it will not work as regards any normally constituted American who can cut through the crap.

As to the German, that the Germans may torture in private may be so. That does not change the fact that what they do is torture and that what we do is torture. What I think is the key is that the German is saying that such a person could not be appointed to that job for the public positions that Mulkasey has taken. There is a sense that this ignorance is not acceptable in a civilized country - even if there are barbarians in the service of the state within the country. The logic is that when that information about the Germans acting as barbarians comes out, the German people will go after those people.

So the key is the secrecy. That is one reason why I have asked repeatedly of the government to release the International Committee of the Red Cross report on the CIA Black Sites detention and interrogation. It is referred to in Jane Mayer's New Yorker article from August and it is clear that members of the Administration and Congress have read it and that the ICRC has said that what we are doing is torture.

I can handle the truth. The American people can handle the truth.

Best,
Ben

Best,
Ben
 

-- Even under the definitions in the September 2006 law waterboarding is torture. --
.
Likewise, the harm cause by waterboarding isn't changed under the Bybee memo either, so why the outrage over the Bybee memo, but absence of outrage at the Congressional enactment that draws essentially the same line?
 

This comment has been removed by the author.
 

On the question of why no outrage - there was and is outrage about the rules in the Military Commission Act of 2006. The point is that until it is found unconstitutional it is the a bad law as opposed to Bybee which was just a bad memo.

Bybee, MCA, new secret memos, whatever - the point is that what is done in waterboarding can be read as torture each time under these. One thing about Bybee is that it is not analysis on which there can be reasonable reliance. One was a fool to rely on it.

The second point is also that waterboarding is not the only technique - there are 24 at least and as used or combined ("cold cell", "long-time standing", "fear up" or whatever they are called in combination and alone) will constitute torture under any of these standards if interpreted in a reasonable manner by a court. Especially if the court understands that the MCA was basically put in place for CYA and the jury in its eminent wisdom will not let this pass. Nor the judge.

Bybee attempts to call all these techniques cruel, inhuman or degrading treatment (i.e. short of torture) so that these things could be done because the argument was that there was a loophole in the US ratification of the Convention Against Torture that permitted CID overseas.

That crap did not nor does not work either. Folks who believe that are drinking too much of their own Kool Aid.

Best,
Ben
 

That's it. You nailed it.

Until about March 2004, torture was unacceptable in America. But now the neocons have changed all that.

Torture is now as American as apple pie -- even if you have to cross the border before eating your pie.

The pathetic Democrats are triangulating themselves into oblivion.
 

-- On the question of why no outrage - there was and is outrage about the rules in the Military Commission Act of 2006. --

.

Not much of it directed at Congress then.

.

My experience, when pointing out that waterboarding doesn't appear to cross the new threshold that Congress passed when it amended the War Crimes statutes, is to obtain responses in the nature of conclusory statements that "water boarding is too torture" (sometimes followed by "why don't you try it, tough guy"), or, as Dilan does here, that I am misconstruing the new statute. IOW, that the statute is hunky dory fine.

.

Some people assume that I personally support the use of torture, just because I assert that Congress has "legitimized" waterboarding (at least, made it directly arguable that waterboarding isn't prosecutable in the US, as a War Crime).

.

While there is quite a bit of anger directed at the CIA and administration for ducking the waterboarding question, there is darn little anger visibly directed at Congress for the substance of its recent amendments to the War Crimes statute.
 

there is darn little anger visibly directed at Congress for the substance of its recent amendments to the War Crimes statute

Not least because no one in the media, let alone the Congress, has as good a grasp of what's going on as do a dozen-odd bloggers and commenters, such as cboldt.

That's one of the oddest things, to me -- that senators and their staffers who would apparently rejoice in the information available, just don't have a clue.

Can anyone point to a single question in a hearing that was identifiably inspired by reading of Balkin's blog, Katherine's posts at ObWi, or similar sources?
 

Sorry folks. I have directed my concerns at the Executive, the Legislative and the Judiciary on all these points. Take a look at the posts on my faculty website or google me at Jurist.
Best,
Ben
 

"Bart" DePalma:

We had to brief our soldiers that giving the polizei their usual American attitude will get them in a world of hurt.

Well, yes, Amur'kans abroad (and perhaps moreso soldiers) can come across as arrogant azos, and in fact one of the wisest bits of advice USDOS puts out is warning people that they're in another country and not in Amur'kah...

But the advice to not talk back to a police officer is one that is universal, I'm afraid, and one that I've learned. But getting D&D has a habit of obscuring such knowledge however acquired, and I'm glad that the Army sought to reinforce it as best they could for the soldiers over there.

As for the American people, most of us can distinguish between severe pain and lesser things as water boarding....

When people like Limpballs pretend that it's just "fraternity hazing" or something like a cold shower, I'm not so sure.

.. We can also distinguish between a civilian criminal defendant or a captured soldier and a terrorist in civilian clothing committing mass murder.

Ummmm, how? And WTF difference does that make, anyway?

Cheers,
 

I agree that for the most part the majority of Americans have become ambivalent about torture - we hear about it so often on the news that it doesn't faze us anymore. Come to think of it, most people barely even appear bothered by the Iraq War at all. Asked individually Americans would oppose the idea of torture but don't mind if it's done to "bad guys" (or shall we say "enemy combatants") because in the midst of Threat Level Orange and daily new briefs about more deaths in Iraq we've come to disregard it all. It's not affecting us personally and since we can't really do anything about it then lets not worry about it, right? I don't really know what most adults think about all of this but I can for sure tell you that most teenagers spend 0 time thinking about any of this. And if you think you can create any uproar by declaring to a bunch of teens that the US uses torture you'll just find yourself faced with a bunch of "yeah, duh. so what?"s. I doubt many teens at my school has even heard of Mulkasey or waterboaring or even care. We're used to Judges being evasive, we're used to our government being evasive, and we're used to our presidents being evasive. I don't think any of my friends really have any faith in any political leaders. Being evasive or walking the middle line is the norm nowadays and I think most teenagers have grown up with that and as a result we don't question or appear to care when people like Mulkasey fail to directly/honestly answer questions.
 

Bart writes:
As for the American people, most of us can distinguish


Representing your personal opinion as 'most of us' is specious to say the least. Most of the people you talk to, perhaps.
 

Pauline, your apathetic approach to American politics reveals a deep psychological problem. I would consult a psychiatrist with the utmost haste, else cure my illiteracy via a proper education. Where do you go to school anyway that no one cares about torture there? American education these days. You youngsters don't know the slightest thing about politics and act like you have the right to wear armbands be disillusioned. When I went to school in the fifties, that sort of behavior would not have been tolerated.
 

Actually, you have a good point, because no one in America cares. And I do not know you, so I do not know if you have a psychological disorder. But American education is still lacking in several regards.
 

Pauline, I am not sure what waterboaring is or what that even has to do in the context of your argument. Essentially, your problem is that you have identified an egregious problem with American adolescent society and without proposing any actual remedies, proceed to assume most inanely that the typical teenager is the entire public. Unfortunately, as under-eighteens can't actually vote, you haven't actually addressed the appropriate population. I fail to see what your actual argument is, for all your typed out response, and hope you have better luck in the future in your level one prose class.
 

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s swing movement the Rumah Dijual Bintaro Rumah BSD Rumah Dijual BSD Rumah Gading Serpong Rumah Dijual Gading Serpong Jual Rumah Karawaci Jual Rumah di Karawaci Jual Rumah Tangerang Jual Rumah di Tangerang Jual Rumah Jakarta Jual Rumah di Jakarta alam sutera serpong alam sutera tangerang bintaro 1 bintaro jaya sektor 9 bintaro perumahan bintaro sektor 1 bintaro sektor 4 bintaro sektor 9 bintaro tangerang
 

wear that happen for Rumah Dijual Bintaro Rumah BSD Rumah Dijual BSD Rumah Gading Serpong Rumah Dijual Gading Serpong Jual Rumah Karawaci Jual Rumah di Karawaci Jual Rumah Tangerang Jual Rumah di Tangerang Jual Rumah Jakarta Jual Rumah di Jakarta alam sutera serpong alam sutera tangerang bintaro 1 bintaro jaya sektor 9 bintaro perumahan bintaro sektor 1 bintaro sektor 4 bintaro sektor 9 bintaro tangerang