Balkinization  

Friday, October 19, 2007

A Severe Insult to the Brain...

David Luban

...is the title of a book chapter by Truman Capote. It’s also, supposedly, the cause of death listed on Dylan Thomas’s death certificate.

It’s not bad as a description of Judge Mukasey’s dialogue about torture with Senator Sheldon Whitehouse, either.


"Is waterboarding constitutional?" he was asked by Senator Sheldon Whitehouse, a Rhode Island Democrat, in one of today’s sharpest exchanges.

"I don’t know what is involved in the technique," Mr. Mukasey replied. "If waterboarding is torture, torture is not constitutional."

Mr. Whitehouse described Mr. Mukasey’s response as a "massive hedge" since Mr. Mukasey refused to be drawn into a conversation over whether waterboarding, which has been used by the Central Intelligence Agency to question terrorist suspects, amounted to torture.

"I mean, either it is or it isn’t," the senator continued. "Waterboarding is the practice of putting somebody in a reclining position, tying them down, putting cloth over their faces, and then pouring water over them to simulate drowning. Is that constitutional?"

Mr. Mukasey repeated his answer: "If it amounts to torture, it is not constitutional."

Mr. Whitehouse said he was "very disappointed in that answer — I think it is purely semantic."

"I’m sorry," Mr. Mukasey replied.

It’s hard to know where to start. To begin with, Senator Whitehouse’s question was a little bit off the target. Before ever getting to the question of whether waterboarding is "constitutional" or not, let’s ask whether it’s a CRIME. Yes, torture is a crime – a serious federal felony that can carry the death penalty. Maybe that’s what the senator meant to ask about. Is waterboarding illegal? Is it criminal? Maybe "unconstitutional" just meant "really, really illegal."

Equally off-target is Judge Mukasey’s answer, "torture is not constitutional." Either he too meant by "unconstitutional" something like "really, really illegal" or he was off on a complicated lawyer’s question. Within U.S. territory, torture "shocks the conscience" and therefore violates the Due Process Clause of the Constitution. Whether the Constitution applies outside the U.S., where the waterboarding takes place, is a fiercely disputed question. The Bush Administration, relying on the 1950s case Johnson v. Eisentrager, says no. For the Bushies, overseas torture IS constitutional, because the constitution doesn't follow the flag overseas.

So, wow! Was Mukasey saying that the Due Process Clause does apply outside of the United States? That would be one of the greatest legal defeats he could inflict on the Bush Administration. So the smart money says that he didn’t mean "unconstitutional" when he said "torture is not constitutional." He too probably just meant "torture is really, really illegal."

But let’s set all that to one side, because, really, the excitement of the moment maybe got to both the senator and the judge and they weren’t speaking precisely. (Although you might hope that a former federal judge and future attorney-general would know the difference between "illegal" and "unconstitutional.")

The next problem is that after Mukasey’s artless evasions, the Senator didn’t ask the final follow-up question:

"Judge Mukasey, is waterboarding torture? Torture, under the law, means intentional infliction of severe mental or physical pain or suffering. Do you think waterboarding as I’ve just described it inflicts severe mental or physical pain or suffering?"

Senator, why oh why didn’t you ask this one simple question: is waterboarding torture? Forget "unconstitutional." Is it torture? If you had asked that, maybe we wouldn’t have to suffer through the endless charade of Bush and his minions saying "we don’t torture" and "we obey the law" whenever they're asked whether they have redefined the law so that the stuff they do isn’t "torture."

To this question – is waterboarding torture? – Mukasey would presumably have begged off the answer, on the grounds that he hasn’t studied the issue and doesn’t know enough about it. It’s a deep, profound, arcane, technical legal question and he wouldn’t want to answer it without deep, profound, arcane poring over the highly technical precedents.

We damn well know what he wouldn’t say, which is "yes, sounds like severe suffering to me." And I hope he wouldn’t just echo Dick Cheney and say that a "dunk in the water" for a terrorist is a no-brainer. So, let’s guess evasion.

Aren’t we tired of evasion? The legal formula "severe physical or mental pain or suffering" is NOT an arcane lawyer’s term of art. It’s not an old Latin phrase or a medieval term like "replevin" or "assumpsit". All the black arts of the Bush torture lawyers have been bent to one end: pretending that there is something arcane and complicated about the words "severe physical or mental pain or suffering." Something that only a brilliant lawyer with fancy credentials can figure out.

The fact is, there is no rich technical jurisprudence on the meaning of those words, and only scoundrels pretend that there is. The legal definition of torture is just twenty years old, and - to say the least - torture cases raising the issue of where to draw the boundary between "severe" and "not severe" aren’t popping up on the dockets of courts the world over like slip-and-fall cases. This isn’t a question for lawyers. This is a question of common sense. Let’s stop being ridiculous.

So: does waterboarding inflict severe suffering? If you want to do a quick, common-sense reality check, try this. Blow all the air out of your lungs. Then stare at your watch and try not to inhale for ninety seconds by the clock. Then take one quick half-breath and immediately do it again. Now imagine that you’re tied down while you’re doing it and water is pouring over your head and rolling up your nose. Or, if you’re really ambitious, get in the shower and turn it on and try the same hold-your-breath-with-no-air-in-your-lungs experiment with your head tilted up and the water pouring up your nose. Then decide for yourself whether it’s severe suffering.

Comments:

I think the only sensible answer is that the senator did not want to ask whether waterboarding is torture.

The interesting question is "Why not?", and I don't know enough about politics to hazard a guess.
 

I think my questioning would have been more hyperbolic:

"Sir, I think we can all understand the importance of candor in these types of hearings. And to be quite frank with you, persons either part of or wanting to join this administration have thought it perfectly fine to lie openly to this committee. And since waterboarding is apparently not torture, and more, seems to elicit truthful responses we could not otherwise get, I think you'll understand how we've reasoned our way towards utilizing this interrogation technique on you for the remainder of this confirmation hearing. I cannot assure you that this won't hurt, but I think I am on firm ground that what is about to follow isn't torture."

At which point I would instruct the Sergeant at Arms to bind the witnesses hands.

This hyperbole I think explains why the questions raised above weren't asked. It's one thing to speak of torture as denigrating the ideals of our enlightened constitution, it's another thing entirely to think that the rights guaranteed by that document might extend to a bunch of terrorists. Judge Mukasey nor Senator Whitehouse need never fear being tortured and so their dialogue isn't about violating another person's human rights but rather it's a dialogue about how we are supposed to be better than that--we can't sink to their level as it were--we have an oath to uphold these ideals no matter what those savages do.

It isn't surprising to me that they never address the criminality of torture, for that we'd need to speak of a victim being violated as opposed to a foundational ideal being violated.
 

Does anyone seriously doubt that Mukasey knows waterboarding inside out and approves it as legal, constitutional, justified -- in short, as a no-brainer? He stands to replace a man for whose benefit a torture memo was "withdrawn" to land him the job and who then went on to authorize head slaps, freezing temperatures and, yes, simulated drownings. The administration has yet to disown from any of these techniques.

Mukasey would have been shown the White House door in mid-interview had he said there what he did to the Judiciary Committee, which might as well have asked him if he intends to shave each morning and wear a tie to work.

Anyone still capable of taking such pseudo-demurrals at face value is living proof that you can indeed fool some of the people all of the time. Sadly, we all end up with the mendacious government they alone deserve.
 

I knew when I read this entry and went to the comments I wouldn’t see the ever present Bart. The whole nature of the issue changes if you have enough empathy to imagine waterboarding as a physical, tactile, personal experience perpetrated on yourself or someone you love or care about—or even to the civilized mind—those who are ostensibly our enemies. Torture isn’t something to be parsed in law, but a barbaric tool in the service of power.
 

charles edward mann said...

I knew when I read this entry and went to the comments I wouldn’t see the ever present Bart. The whole nature of the issue changes if you have enough empathy to imagine waterboarding as a physical, tactile, personal experience perpetrated on yourself or someone you love or care about—or even to the civilized mind—those who are ostensibly our enemies. Torture isn’t something to be parsed in law, but a barbaric tool in the service of power

Your suggestion concerning point of view illustrates a major difference between the sides of this debate.

You subjectivize the question by placing yourself in the shoes of the target of the interrogation, apply your own very low threshold of pain and personal innocence, and thereby view the interrogee as yourself - a victim.

On the other hand, I objectivize the question by recognizing that the target of the interrogation is a terrorist - trained like our soldiers to resist the pain and discomfort endemic in par - and by applying the perspective of historical standards of torture. From this perspective, things like 90 seconds of water boarding fall short of real torture.

This point of view dichotomy also commonly occurs in death penalty debates.

Death penalty opponents imagine themselves strapped to the gurney and being put to sleep like a dog and are personally repelled.

On the other hand, I view the person on the gurney as a murderer and note that this mode of execution is nothing compared to hanging, electrocution or the gas chamber.

These questions have nothing to do with whether YOU personally would want to undergo the process of interrogation or execution. There are many perfectly legal processes that we all would not want to undergo. Rather, take yourself out of the equation and take an objective view based on history and real life.
 

-- The legal definition of torture is just twenty years old --
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Congress recently changed the legal definition of torture by the passage of the MCA.
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I urge careful reading of the new statute, including the contents of the "section thus and so of this title" references.
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Under Congress's new definition of torture, which specifies that any mental suffering must be prolonged, or at least "non-transient," and also specifies that physical harm must be permanent, drowning and resuscitating a person is apt to be found "below the level of war crime." The mental suffering is transient, coincident with the experience of drowning, and the body will heal the physical damage to the lungs.
 

cboldt:

Are you deriving your MCA definitions from Section 950v - Crimes triable by military commissions, subsection (b)(11) which creates the crime of Torture and subsection (b)(11) which creates the crime of cruel and inhuman treatment?

If so, these crimes and their definitions are limited to unlawful enemy combatants being tried by military commission.

The MCA did not amend 18 USC § 2340, which defines the crime of torture for the federal criminal code applicable to the government.

For everyone's reference, here is the definitions used in 18 USC § 2340:

(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from -

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality...


I agree with your point that water boarding creating panic lasting a minute or two is unlikely to fall within the definition of "severe mental pain or suffering" as "prolonged mental harm."
 

-- Are you deriving your MCA definitions from Section 950v --

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No. See Section 6, "Implementation of Treaty Obligations" of Public Law 109-366. In addition to creating Military Commissions, the Act also promulgated "Revision[s] to War Crimes Offense Under Federal Criminal Code." (18 USC 2441)
 

You subjectivize the question by placing yourself in the shoes of the target of the interrogation, apply your own very low threshold of pain and personal innocence, and thereby view the interrogee as yourself - a victim.

On the other hand, I objectivize the question by recognizing that the target of the interrogation is a terrorist - trained like our soldiers to resist the pain and discomfort endemic in par - and by applying the perspective of historical standards of torture. From this perspective, things like 90 seconds of water boarding fall short of real torture.

I think you have transposed the definitions of objective and subjective. An objective view of torture would conclude that there are acts that are torture regardless of the person those acts are being inflicted upon. It seems that the definition of torture you endorse depends entirely upon the perceived guilt of the subject.

There is a further fallacy in this logic that makes your analogy to the death penalty inapposite. The death penalty is punishment for the guilty. So-called enhanced interrogation techniques are just that--techniques for obtaining information. The guilt of the subject is not at issue; the only issue is that the person is believed to have information desired by the government. Would you apply the same standard to a reporter trying to protect her source? Wait, don't answer that...
 

I was frustrated that no one asked (something like), "If waterboarding were to be inflicted on a service person--someone like, say, John McCain--as 'motivation' during his interrogations while he was in captivity by an enemy and he himself characterized it as 'torture' in a lawsuit or trial, would you judge that the waterboarding was 'torture'?"
 

I'd say that if you can't breathe, if you feel you won't be able to breathe, and if the interrogators have every reason to push it as far as they can, then waterboarding inflicts a "threat of imminent death" which may cause prolonged mental harm.

Maybe the only way out is to say that the torturees are so "tough" that even the threat of imminent death would not cause mental harm. Bart seems to say that.

In that case, torturers can almost always make a reasonable argument that they are not committing torture. Maybe that is what AG meant when he said "it would depend on the circumstances quite frankly." You'd need information about the torturee's mental state.

Or does that problem go away because this is a specific intent crime? As long as you intend to cause prolonged harm, then it doesn't matter whether you actually do cause harm or whether a reasonable person would be harmed.
 

-- if the interrogators have every reason to push it as far as they can, then waterboarding inflicts a "threat of imminent death" which may cause prolonged mental harm. --

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I think the proper construction of the statute is that the war criminal defendant would have to be accused of threatening to kill the subject. If the waterboarding was preceded by a statement in the nature of "We aren't going to kill you. We are going to drown you. You will pass out. Then we are going to resuscitate you. We will repeat this procedure until you tell us all you know." that the treatment would not be construed to be a threat of imminent death.

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IOW, the threat of imminent death has to be directly expressed by the interrogator (e.g., pull out an apparently loaded gun and press it to the victim's temple), not be a fear that exists independently in the victim's mind.

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The references in the war crime statute, to 18 USC 2340 and 18 USC 113, are new since October 2006. The administration insisted on these references. I assume that insistence is "rationally based" inasmuch as the references legitimize some sort of past and/or present interrogation methods.

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But Congress passed it, and ignorance of the law is no excuse. These references were expressly negotiated.

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My narrow point is that if one is going to blame the administration for waterboarding, one should also cast aspersion on Congress for passing a law that enables it. There is a team effort going on here. Neither side will admit their action or complicity. And the public seems more willing to blame the actor than the enabler.
 

Strikes me that torture debate is being placed on a linear scale. Everything is permitted up to that fine line, which when crossed, constitutes torture...

Potential damage to a person psychic or physical well being would follow a normal distribution curve, an act that would injure one person, may have no effect on another. Acceptance of this principle means that the fine linear line between abusive behavior and torture does not exist. The burden rests on the inquisitor, he or she would have to define whether for this prisoner (individual), the technique may or may not be torture.

Then there is the issue of time, if no adverse effects are noted for five years, if subsequent psychic or physical deterioration occurs, what then?

Then, there is that little phrase, so often ignored by the legal fraternity "We hold these truths to be self evident..." Could it possibly be that torture is nothing but a small circle inside the bigger universe of aggressive physical and mental abuse? Surely these abuses are recognized in the criminal law of most countries, accepted within the coda of major religions, and recognized in international treaties such as the Geneva Convention.

The incongruity of the argument boggles the mind: if torture is narrowly defined, abusive behavior is not only acceptable, but can be encouraged. Ponder this: If abusive behavior is accepted as a valid interrogation technique, how do we define when it crosses the line into torture.

Finally, the silliest argument advanced is that acts that would be considered criminal and abusive if committed on US Soil are beyond moral or legal judgment if committed on foreign soil -- sorry Mr. De Palma, some truths are self-evident.

Take heart, it only took 40 some odd years to nail the Chilean torture Pinochet, and already those stout fellows who engaged in "extraordinary rendition" are now on trial in Italy. As Bart will be glad to explain to you, kidnapping is a crime in the US, but not if committed by the US government on foreign soil. Not only that, if the kidnapped person is rendered to a foreign country, and if torture is committed, we have no responsibility. Just ask the Supreme Court, when it comes to "self evident truths", the strict constructionist are Aces...
 

-- Or does that problem go away because this is a specific intent crime? --
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Torture is a specific intent crime. But rather than belabor that point, it's probably better to analyze whether or not certain actions are ANY kind of war crime. The "we don't torture" defense is both weak, and a straw man. But do we engage in cruel and inhuman? That war crime doesn't have the specific intent elements.

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Still (not that I like this outcome), the additional references to 18 USC 2340 and 18 USC 113, in the war crimes statute, seem to permit quite a range of interrogation technique -- anything but threatening death, as long as the mental harm isn't prolonged and the physical harm isn't permanent.
 

The mental suffering is transient, coincident with the experience of drowning, and the body will heal the physical damage to the lungs.

Psychiatric studies of actual torture victims have shown that long-term mental effects are linked to the lack of control of the victim over his/her own body and the corresponding lack of trust more than either time of exposure or physicality of the torture.

The fact that the torture could take place at all is what inflicts long-term mental suffering, and it doesn't go away when you stop pouring water on someone's face.
 

Wouldn't it be more like a law professor to answer that waterboarding is like perjury, that the definition and consequences depend on the party affiliation of the president?
 

-- Psychiatric studies of actual torture victims have shown that long-term mental effects are linked to the lack of control of the victim over his/her own body and the corresponding lack of trust more than either time of exposure or physicality of the torture. --

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I believe that's accurate. It fits what one naturally intuits from experience, imagination and empathy. But to constitute torture (or cruel and inhuman), the mental effects on the victim not only have to be prolonged, they have to be serious. I assume that's a question for the jury. Those who have been hostages often suffer long term mental effects, even if they aren't tortured. What is the seriousness of their mental preoccupation (for want of a better term) following their time in the hole?

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I'd be willing to bet that many people who are roughed up during arrest have long-term mental effects from that experience. What does the effect have to be, to be "serious" or "severe" mental harm? Occasional nightmares? Treatable depression? Is John McCain suffering serious mental harm as a result of his captor's interrogation techniques?

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Once freed of the interrogator's grasp, I'm betting most victims are relieved yet nervous, and probably preferring to get on with their lives, as far out of sight as they can manage.

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I think incorporating the references to 18 USC 2340 and 18 USC 113 was a big mistake. Strike that, a HUGE mistake. At best, it only muddles the issue. But most likely, not only is the issue legally muddied, the law enables and endorses waterboarding and maybe worse treatment, and has concomitant effects on world policy or world view of the US.
 

Bear in mind that even if cboldt's analysis is correct, under the Charming Betsy principle, the war crimes statute gets interpreted consistently with the Convention Against Torture absent a clear statement of Congress that it wishes to abrogate the treaty.

So torture, under the CAT definition, is still illegal.
 

cboldt said...

Torture is a specific intent crime. But rather than belabor that point, it's probably better to analyze whether or not certain actions are ANY kind of war crime. The "we don't torture" defense is both weak, and a straw man. But do we engage in cruel and inhuman? That war crime doesn't have the specific intent elements.

Are you sure? Here is the definition of CIT to which you have been referring:

(B) Cruel or inhuman treatment.--The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.

It appears to me that Congress is equating torture and CIT and both are specific intent crimes.
 

PMS_Chicago said...

Psychiatric studies of actual torture victims have shown that long-term mental effects are linked to the lack of control of the victim over his/her own body and the corresponding lack of trust more than either time of exposure or physicality of the torture.

What is the "actual torture" which was inflicted on these study subjects? I am willing to wager that most if not all of the interrogation techniques in those studies went far beyond the CIA coercive interrogation techniques. In that case, these studies are inapplicable to our question.
 

Yes. I'm sure. Compare (A) Torture and (B) CIT carefully. The phrase "specifically intended" only appears in (A) Torture.
 

That such a debate is ongoing at all is testament to how debased we have become as a society. "Torture," "abuse" "enhanced interrogation techniques," whatever you wish to call it--as if semantics can relieve us of the ethical guilt of our actions--we are taking helpless captives--helpless because we have rendered them so, and, Bart to the contrary, we don't know if they're terrorists or not, (as if it makes a difference anyway)--and subjecting them to physical treatment intended to distress them in some manner and to some degree.

This is shameful, abhorrent, barbaric behavior. If we take a human being into custody, we take on ourselves the responsibility to treat that prisoner well for the duration of his or her captivity: to feed him, dress him, tend to his ailments, and to not lay hand on him!

The surest way to avoid our "going over the line" (this is going on the naive assumption that we don't want and intend to go over the line from the outset) is to refrain from even the slightest expression of violence toward a prisoner...to refrain even from verbal harassment, much less any physical harassment.
 

cboldt:

Specific intent crimes do not necessarily require the text to state "specific intent." Specific intent means an intent to accomplish the prohibited act.

I would suggest that "an act intended to inflict severe or serious physical or mental pain or suffering," requires a specific intent to inflict the prohibited act.
 

This comment has been removed by the author.
 

"Bart" DePalma:

You subjectivize the question by placing yourself in the shoes of the target of the interrogation, apply your own very low threshold of pain and personal innocence, and thereby view the interrogee as yourself - a victim.

"Can I amend my statement? Rather than 'we don't torture', I meant 'we only torture Terra-ists ... and we're proud of it'."

BTW, I'd note for the benefit of the perfessers that "Bart" here has just engaged in ad hominem on Mr. Mann.

This point of view dichotomy also commonly occurs in death penalty debates.

Yes, indeed. We only execute the guilty ... as determined by a court of law ... like in Texas, Arkansas, Georgia, etc..

Cheers,
 

cboldt:

I think the proper construction of the statute is that the war criminal defendant would have to be accused of threatening to kill the subject. If the waterboarding was preceded by a statement in the nature of "We aren't going to kill you. We are going to drown you. You will pass out. Then we are going to resuscitate you. We will repeat this procedure until you tell us all you know." that the treatment would not be construed to be a threat of imminent death.

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IOW, the threat of imminent death has to be directly expressed by the interrogator (e.g., pull out an apparently loaded gun and press it to the victim's temple), not be a fear that exists independently in the victim's mind.


I'm not convinced.

So "express[ing]" an "intent" not to do something illegal is sufficient to make it legal. So if I go to a bank, and proceed to rob it, I can just produce at my trial the stickup note that says "You know, I really wish I had enough money to buy a small island in the Caribbean"? Thanks. After all, it just isn't my problem that the teller misunderstood my "intent" because I had my hands in my jacket pocket; her misperceptions can't hardly be held against me; I made it perfectly clear in the note!

I think that "intent" here involves more than the formality of some expressed purpose and it must necessarily involve the perception of the person subject to the treatment even if not justified by the actual intent and by the "express[ed]" intent. After all, what we're looking at is the effect of the treatment on the person subject to the treatment, and for that, their own perception, fears and apprehensions (particularly under captivity) cannot be ignored. Not to mention, the whole idea of "waterboarding" is to simulate drowning ... if it works so wonderfully to tell them in advance that you won't really drown them <*heh-heh*>, to allay their fears, then it wouldn't work!!!

Cheers,
 

our paul:

Potential damage to a person psychic or physical well being would follow a normal distribution curve, an act that would injure one person, may have no effect on another. Acceptance of this principle means that the fine linear line between abusive behavior and torture does not exist. The burden rests on the inquisitor, he or she would have to define whether for this prisoner (individual), the technique may or may not be torture.

Indeed. Much as the ED50 and LD50 pertain in medicine. ED50 is the dose at which the medicine is effective in 50% of the cases. LD50 is the dose that is fatal for 50% of the cases. Some drugs have ED50s very near the LD50 and quite a bit of variance; barbiturates are one (used for anaesthaesia), others such as aspirin have a large separation (but nonetheless not 100% complete) between the ED range and LD range.

But this leaves behind that the purposes of torture/CID are not divorced from the damage they cause, and in fact, a case could be made that torture/CID are best done (from an operational standpoint) at the highest doses possible, because we really don't care too much about the "adverse effects" and really want the maximum efficacy regardless of any other considerations. We're not trying to "cure the patient"; you might say we're more interested in one of their kidneys to save one of our children. Once that's clear, the moral framework of torture/CID becomes more apparent (and to me, more repulsive).

Cheers,
 

cboldt:

Torture is a specific intent crime.

As defined. But I'd point out that the desire to inflict pain doesn't have to be the "be-all-and-end-all"; the ultimate goal. Much as I, in my trip to the bank, might just have as my ultimate result in mind the acquisition by legal purchase of a Caribbean island to spend the rest of my days on (and a glorious goal that is), if my "intentions" in slipping my plaintive note to the teller was that it might induce her to hand over the contents of the cash drawer, as a reasonable and predictable result, I would still be robbing the bank.

A desire for information may be laudable, but the choice of means that are known to (be likely to) cause a certain effect in the detainee (and in fact, I'm smart enough to know that in fact that effect is not only predictable but necessary for me to achieve my ultimate goal) is enough for the "intent" to be there. Malice (much less sadism) isn't required, just "intent".

Cheers,
 

robert cook:

... and, Bart to the contrary, we don't know if they're terrorists or not, (as if it makes a difference anyway)- ...

It doesn't. Nothing in the statutes and treaties differentiate between "terrorists" and others. I think Nathan's comment is quite apt: Torture/CID/whatever-Dubya-wants-to-call-it could be done on anyone that happened to (be thought to) have "information" of use, regardless of how the statutes are parsed....

I think the reason that is clear is that people assume we'd only torture "terrorists" because everyone else would be glad to give over the information they have as a civic duty and an honourable thing to do. The rub comes with those that are obstinate for other reasons ... or happen to be thought wrongly to have information of interest.

Cheers,
 

-- So "express[ing]" an "intent" not to do something illegal is sufficient to make it legal. --
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That misconstrues the gist of my comment. Each to his own. Cheers.
 

cboldt:

Back to the drawing board:

IOW, the threat of imminent death has to be directly expressed by the interrogator (e.g., pull out an apparently loaded gun and press it to the victim's temple), not be a fear that exists independently in the victim's mind.

Not sure what you mean by "directly expressed", then. Intent is a state of mind, and can be proved by any number of means besides "direct[] express[ion]". And a contrary "direct expression" shouldn't be enough to disprove intent. If the actions are sufficient, or, under the circumstances, should be sufficient, to produce the necessary "threat of death", and it should be obvious to any reasonable person that such a fear would result from the actions, then the actions speak louder than words, even if the words are meant to mollify. "We're from the gummint, and we're here to help...."

In many if not most of these cases, the fear of death arises from the actions (and probably for good reason ... "actions seak louder than words"). And as I said, I think the "efficacy" of such procedures arises predominantly from that fact.

Cheers,
 

-- Not sure what you mean by "directly expressed" --

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I was disputing the contention that the "severe mental pain or suffering" due to waterboarding meets the criteria of the statutory expression at 18 USC 2340(2)(C).

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(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from-- (C) the threat of imminent death

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My argument is that 2340(2)(C) aims to capture the angst of being expressly threatened with death (tell us what you know, or I'll kill you), and that waterboarding isn't in that nature. It is purposely performed "to the death of the victim." The victims know this, or learn it after a treatment or two. And even if the victim THINKS he is going to be waterboarded to death, if the tormentor doesn't threaten death, well, then the tormentor hasn't issued a threat of imminent death.

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I respect that the opposite conclusion can be argued. Some people, perhaps yourself, hold that the war crimes statute amendment provides crystal clear forbidding of waterboarding. I think it doesn't. In fact, I think the amendment "enables" waterboarding -- it draws a line very similar to the line drawn by the Bybee memo.

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On another of your assertions, I disagree that the "efficacy" of interrogation procedures necessarily arises predominantly from the presence of fear of death. The fear of pain works too. Cattle prod, waterboarding .... and 2340(2)(D) adds the severe mental pain or suffering caused by the threat of harm to others, e.g. family members.
 

An inadvertant typo above, this statment is the opposite of what I meant to say:

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It [waterboarding] is purposely performed "to the death of the victim."

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What I meant to say was ...

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It [waterboarding] is NOT purposely performed "to the death of the victim."
 

There's a problem in applying the statute if the necessary intent of the tormentor is imputed from the victim's state of mind.

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What about the victim who THINKS (in error) that he's being walked to a death chamber, when he's being walked to the shower? Does that mean the tormentor issued a threat of imminent death?

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I think 2340(2)(C) aims to capture a tormentor's action that is a clear threat of imminent death. Direct threat, "I'm going to kill you unless ..." or gun to the head.

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I appreciate that a victim of waterboarding may well feel death is imminent while he's sucking water into his lungs, flailing violently, and passing out. But that is different from the tormentor expressing "I will kill you."

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I repeat that I respect the point is arguable, and that some people will find my construction of the statute weak or clearly erroneous. I don't feel like arguing the point -- spoke up just to attempt to clarify how I arrived at the conclusion I happened to arrive at.
 

cboldt:

My argument is that 2340(2)(C) aims to capture the angst of being expressly threatened with death (tell us what you know, or I'll kill you), and that waterboarding isn't in that nature. It is [not] purposely performed "to the death of the victim." The victims know this, or learn it after a treatment or two....

I'd say that the phrase (even if fully intended "tell us what you know, or I'll kill you" wouldn't necessarily be particularly stressful (which is probably why it is not used as much as actual "demonstrations"). The phrase "I could tell you but then I'd have to kill you" is taken for what it is, and even with intent, if there's no perception of actual credible threat, there probably is no harm done (and isn't that what the statute is supposed to outlaw)?

Putting a gun to one's head works better, as there is always that possibility that this time it's loaded. Then there's the fact that people don't always act rationally and look at the actual potential threat, but often let the subconscious/"fight-or-flight" functions take over in actual stressful conditions. I think it far more rational to parse the "threat of immediate death" as being the perceived situation as the detaineee would see it.

It may be true that after enough dunkings, the detainee might figure out that they're not really going to drown him, but I wouldn't want to find out myself ... and the scuttlebut around is that they don't have to do it for long to get what they want.

... And even if the victim THINKS he is going to be waterboarded to death, if the tormentor doesn't threaten death, well, then the tormentor hasn't issued a threat of imminent death.

As I said, I don't think it's necessary to express such an intended action as long as that is what the detainee reasonably -- but note, not "rationally"; as I said above, we're concerned with what a typical, ordinary person would feel, not what some hyper-rational Mr. Spock would arrive at -- perceives (and not coincidentally what the interrogator desires). The "intent" requirement is the intent to cause physical or mental pain (of a certain severity). There is no specific requirement to
actually "threaten imminent death", only a qualification that such a threat actually causes (or should be seen to cause) this level of pain (and to do so, the "threat", whether explicit or implied ... or even denied, must be believed by the detainee).

I respect that the opposite conclusion can be argued....

It doesn't make sense to criminalize idle threats (and this is pretty much how we treat many such "threats" in other areas of the law; perhaps the malum prohibitum crime of threatening the president notwithstanding). It doesn't make sense to decriminalize overt actions that have the same effect as an explicit (and believable) threat. While I'm sure that Yoo and Addington might find such a parsing advantag... -- ummm, "plausible", I can't believe that a court should find so as well.

... Some people, perhaps yourself, hold that the war crimes statute amendment provides crystal clear forbidding of waterboarding. I think it doesn't. In fact, I think the amendment "enables" waterboarding -- it draws a line very similar to the line drawn by the Bybee memo.

Perhaps. But while they may have written it (or at least ghost-written it) with that in mind, it will still fall to a court to make sense of it.

On another of your assertions, I disagree that the "efficacy" of interrogation procedures necessarily arises predominantly from the presence of fear of death. The fear of pain works too. Cattle prod, waterboarding .... and 2340(2)(D) adds the severe mental pain or suffering caused by the threat of harm to others, e.g. family members.

Agreed. But waterboarding is reputed to be uniquely effective, and I suspect that is in part due to subconsciously mediated terror responses that are hard if not impossible to control. I don't think the other techniques are any more acceptable by dint of leaving less lasting damage. I think the idea of deciding what level of pain and terror is "acceptable" to be abhorrent. The "exigency"/"necessity"/"24" argument is one I've dealt with a long time ago.

Cheers,
 

cboldt:

There's a problem in applying the statute if the necessary intent of the tormentor is imputed from the victim's state of mind.

Not when you put in a "reasonable person" standard as to what will happen to the detainee. One of the wonderful things about "waterboarding" is that it reliably "works". Doesn't (at least from most accounts) matter much who it is, the result is supposedly the same....

What about the victim who THINKS (in error) that he's being walked to a death chamber, when he's being walked to the shower? Does that mean the tormentor issued a threat of imminent death?

See above. And as I said even further above, it's the intent of the interrogator to cause this state that matters; the interrogators know (with waterboarding) that the guy will "come around"; it's not like they're looking at such as a possible peripheral side-effect of taking care of a "sand-n*gger"'s personal hygiene....

I think the relevant question is whether waterboarding does reliably produce a real and overwhelming sensation of drowning (so as to satisfy the "mental pain" defintion as per the "threat of death" clause), and then whether the infliction of this sensation was done intentionally.

Cheers,
 

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