Balkinization: Now Why Didn't I Think of That? Washington Post Proposes That Senate Ban Torture!

Comments:

But, obviously, Bush would feel as free to violate the Biden bill (with or without adding a signing statement that reads it out of existence) as he has felt to violate all the other laws that you mention. The only solution is impeachment, removal from office, and prosecution for war crimes. Anything short of that continues Congress' complicity in Bush's war crimes.

# posted by

Henry : 6:09 AM

Back in high school in the mid 1940s I met a new classmate, Joe. He came from another section of Boston and he had a sense of humor that was most welcome. Joe had interesting sayings that he would come up with from time to time and the one that comes to mind frequently is:

"Halitosis is better than no breath at all."

That seems to sum up the Post's position on Mukasey. But halitosis is not waterboarding.

# posted by

Shag from Brookline : 7:14 AM

There is a world of difference between banning generic "torture" or CID without any workable definition of what is meant by that term and the Biden bill incorporating the a detailed US Army Field manual describing what is and is not permissible.

Even the WP, if not others who should know better, can recognize that the former is completely unworkable.

# posted by

Bart DePalma : 8:37 AM

Any person who needs to have described to him what constitutes torture in order that he knows not to do it, that he knows what is illegal and what not, is a moral monster unfit to serve in any position of responsibility.

Any ethical person possessed of humanity knows that one does not even so much as slap a helpless captive; that slap might not itself constitute torture, but it is an undeniable expression of sadism, of the merciless, arbitrary and implacable authority wielded by the powerful over the powerless; it is a first step over the threshold to torture, and it reveals the inhumanity of the man (or woman) willing to slap a helpless captive.

# posted by

Robert Cook : 9:19 AM

robert cook said...

Any person who needs to have described to him what constitutes torture in order that he knows not to do it, that he knows what is illegal and what not, is a moral monster unfit to serve in any position of responsibility.

Be sure to send a letter to the Army telling them that they can replace the dozens of pages of detailed instructions on how to and not to conduct interrogation with the single line: "Thou shalt not Torture."

After all, only an "[im]moral monster" needs any more guidance than that...

# posted by

Bart DePalma : 9:28 AM

Fred Hiatt is a fool if he thinks that the Boy King George W can be constrained by any law. Bush has gone out of his way to repudiate the rule of law and instead to substitute his own personal sovereignty over all of his fellow citizens. According to the Boy King, 300 million of us citizens could demand -- again -- that torture be banned but Little George has the "constitutional" authority to defy us all.

Bart: why don't you go pollute some other web site with your immoral obfuscations and rationalizations? I thought you boys were known for touting your own "moral clarity"? The war criminals in the Bush Administration and their supporters, like Bart, lost any kind of moral vision years ago -- assuming they ever had any in the first place, a dubious assumption.

You all are nothing but filth to be democratically removed from the political system you hate.

Go away, little boy.

# posted by

The Fool : 10:09 AM

Bart, for once you are correct. Military personnel should need no further instruction than "Thou shalt not Torture."

However, I suspect (although I do not know) that the "dozens of pages" of pages instructing personnel how to and how not to conduct interrogation contain lessons in techniques intended to elicit responses WITHOUT using physical force; this would be useful information, as most of us lack the training or experience to know how to seduce information out of subjects. To the extent there is explicit prohibition against physical abuse, it is likely there for legalistic purposes, to allow the military plausible claim that they abide by the Constitution and the law and prohibit torture or abuse.

After all, anyone should know that subjecting any restrained, helpless captive to physical abuse of any kind--even a slap--is wrong. Don't you?

# posted by

Robert Cook : 10:10 AM

Bart: Let's see just exactly how difficult it is for you immoral monsters to stand up for what is right.

Do you, Bart DePalma, personally acknowledge that waterboarding is torture and an abomination to all who are guided by morality?

Do you, Bart DePalma, acknowledge that cold showers, ice baths etc. in air conditioned rooms and other methods of inducing hypothermia or near hypothermia are torture and an abomination to all who are guided by morality?

Do you, Bart DePalma, personally acknowledge that forcing people into stress positions and hanging them by their hands from ceilings is torture and an abomination to all who are guided by morality?

Do you, Bart DePalma, personally acknowledge that injecting people with psychotomimetic drugs is torture and an abomination to all who are guided by morality?

Do you, Bart DePalma, need to consult an Army Field Guide or any other document to answer these questions?

# posted by

The Fool : 10:32 AM

Don't know how often I have to say this, but -- like the 500 or so posts that have preceded it -- this is *not* a post about Bart. And unlike Michael Mukasey and Fred Hiatt, Bart has no influence on public policy or the national debate. So *please* stay on-point and make the comments section something worth reading. Much appreciated.

# posted by

Marty Lederman : 10:44 AM

It's really very simple, Bart. Pay attention now. Prisoners of War are protected under international and American law. They are no longer combatants. You can't use force OF ANY KIND on them to try to coerce them into giving information. You have to get your information some other way. That is what the law and morality demands.

We know you are really, really angry and you really, really want to torture somebody, but you're not allowed.

If you or your friends break the law and do what you have been rightfully and lawfully forbidden to do, then the force of the state can and should be used to humanely punish you and your friends with lawful imprisonment, where you will not be waterboarded, given an ice bath, put into a stress position, or injected with drugs.

# posted by

The Fool : 10:47 AM

It won't make any difference. The Bush administration would just outsource the torture, like they are already doing. The bill would have to contain provisions that cover this situation.

# posted by

NAL : 11:07 AM

Today is the day, Leahy will announce his take on the nominee at 3pm EST. Critical Schumer vote hangs in balance and poor Schumer got a problem here - as a senator from New York he is expected to support local NY boys unquestionably. Very clever of them.

Apart from that the calculus seems to depend on how one estimates the chances that GOPers will manage to stay in the office in 08. Having Mukasey bring some semblance of professional integrity to the department makes a lot of sense, having him staying for another 4 years much less given that the gentleman is politically, philosophically more or less full monty Cheney, as sad as that is.

Being professionally smooth Mukasey will be far more effective implementer of their agenda that Cheney who's not longer much more than a caricature of himself.

# posted by

wg : 11:17 AM

All of these posts are on point, Marty. Care to join in on the conversation?

# posted by

Bart DePalma : 11:18 AM

Torture was barred by US law even before we ratified the Geneva Conventions:

“There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.” Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944). And see Brown v. Mississippi, 297 U.S. 278 (1936).

# posted by

Mark Field : 11:22 AM

cmarshall4 said...

Do you, Bart DePalma, personally acknowledge that waterboarding is torture and an abomination to all who are guided by morality?

No. Waterboarding for a moment or two is neither torture under the statutory definition nor what I would personally define as torture.

Do you, Bart DePalma, acknowledge that cold showers, ice baths etc. in air conditioned rooms and other methods of inducing hypothermia or near hypothermia are torture and an abomination to all who are guided by morality?

Inducement of the physical state of hypothermia is torture.

Merely shifting the temperature up and down to disorient the subject without causing actual physical harm is not torture.

Do you, Bart DePalma, personally acknowledge that forcing people into stress positions and hanging them by their hands from ceilings is torture and an abomination to all who are guided by morality?

Hanging which causes severe physical pain and makes it impossible to breathe is torture.

A stress position meant to make you uncomfortable and fatigued is not.

Do you, Bart DePalma, personally acknowledge that injecting people with psychotomimetic drugs is torture and an abomination to all who are guided by morality?

Yes.

Do you, Bart DePalma, need to consult an Army Field Guide or any other document to answer these questions?

For most of your broad questions, yes.

# posted by

Bart DePalma : 11:26 AM

-wg- said...

Today is the day, Leahy will announce his take on the nominee at 3pm EST. Critical Schumer vote hangs in balance and poor Schumer got a problem here - as a senator from New York he is expected to support local NY boys unquestionably. Very clever of them.

Schumer recommended Mukasey for the nomination.

# posted by

Bart DePalma : 11:27 AM

cmarshall4 said...

It's really very simple, Bart. Pay attention now. Prisoners of War are protected under international and American law. They are no longer combatants. You can't use force OF ANY KIND on them to try to coerce them into giving information. You have to get your information some other way. That is what the law and morality demands.

You are correct. Captured enemy combatants who fit the definition of POW in GC3 may not be coerced in any way during interrogations.

al Qaeda and its allies do not fit the definition of POWs in GC3.

This is why the comparison of what may be done to our troops who fall under the POW definition and what can be done to al Qaeda unlawful enemy combatants who do not is inapposite.

# posted by

Bart DePalma : 11:31 AM

-wg- writes, "Having Mukasey bring some semblance of professional integrity to the department makes a lot of sense."

If Leahy or Schumer vote for Mukasey, then they vote for torture. That should be their sole consideration. It didn't matter if Mussolini made the trains run on time.

# posted by

Henry : 11:39 AM

Mukasey's nomination makes for a good venue to air the waterboarding issue, but I'm not sure it makes sense to use him as a proxy for administration policy.

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While one may wish for the new guy to come in and either force correction or admission on issues that have heretofore been sequestered as "state secret" or "executive privilege," I think the application of practical politics (realpolitik) indicates the vector for solution lies "above the pay grade" of the AG.

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He's going to do what he's told, on certain matters.

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As to Marty's "P.S.", I have no reason to doubt the story, nor the expression of expectation that Mukasey will protect executive privilege regarding the replacement of US Attorneys, and will protect state secret on the use of waterboarding and other harmless techniques, like temporary hypothermia and temporary suffocation.

# posted by

cboldt : 11:45 AM

Bart said "Waterboarding for a moment or two".

Get real Bart. A moment or two. What a crock. In another context, that would be comical. Here it's more, shall we say, banal. You also can't shock people for a moment or two.

Same with stress positions. Torture doesn't have to be like in the movies where the evil Nazi has a table full of stainless steel torture implements. The body is capable of producing extreme distress from things, like a simple toothache, that can be construed by sophists as being trivial but are not all when you actually experience them.

The ban on torture is a blanket ban. You can't do any of that crap. If you have any doubt about what you're about to do, don't consult the Field Guide, just don't do it. Hands off.

Its very simple for people who aren't immoral. But for Bart these things are all very complicated.

I can see Bart arguing with God after he dies.

BART: "Buh-buh-but jeez god if you hold the Geneva Conventions up to the light a certain way and squint your eyes just right you'll see that these enemies of ours in the War on Terra aren't really fighting a war or something and they're not really prisoners...that's the ticket!

GOD: But, Bart, they were people weren't they?

BART: Well I don't know. You see if you really get down in the weeds the whole idea of a species is a form of essentialism that went out with Wittgenstein. It's all very complicated, god.

GOD: Well, Bart, here is something even someone as morally retarded as you can understand. You're going to Hell now. I'm god and I DO use torture. But don't worry Bart. Its only for an eternity or two.

# posted by

The Fool : 12:41 PM

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

It's the 8th Amendment to the US Constitution- It's pretty fricken clear to me. Don't need no stinkin clarification!

# posted by

Unknown : 2:55 PM

Brian De Palma said:

"Captured enemy combatants who fit the definition of POW in GC3 may not be coerced in any way during interrogations.

al Qaeda and its allies do not fit the definition of POWs in GC3."

Doesn't matter. The prohibition against torture is in what's called the Common Article - and it's called the Common Article because it doesn't just appear in the Geneva Convention dealing with POWs, but in ALL the Geneva Conventions.

You can't torture ANYBODY - not POWs, not 'unlawful combatants', not random civilians - not ANYBODY.

# posted by

JoyceLH : 3:17 PM

[Prof. Lederman, from the post]: They should confirm Judge Mukasey and, at the same time,

they should do something which, for all the rhetoric, they have so far declined to do: ban torture, by passing the National Security with Justice Act sponsored by Sen. Joseph R. Biden (D-Del.)....

... and while they're at it, pass a legal requirement that from now on, all pigs will fly.

I understand that they're taking the absurd position so au courant in RW "talking points" circles (coinkidence? I think not....) that the problem is that torture is poorly defined and we need to ban specific procedures (which of course, would just allow other "twists" [so to speak] on the banned procedures; enough to escape the legal strictures, and things would go merrily on). Torture is not poorly defined, and those that keep insisting that such is true just want to be able to "draw a line" between what is permitted and what is not permitted (and why), thereby winning by default the argument that coercion is a morally justifiable procedure (see, e.g. David Luban's paper in Greenberg's "The Torture Debate In America"). Once you've allowed that a certain procedure is justified for purposes of "gathering intelligence", you've allowed that such procedures do have a moral basis. The trick is to ask whether the same procedure would be justified absent that "purpose". If not, then you lay bare the "whatever it takes", "the ends justify the means" rationale behind he arguments for such, and the moral stance (and the slippery slope) becomes clear.

Then there's the problem that, once you say that certain ends ("intelligence gathering") justify such procedures, you find out that in fact the argument is then made that since you are in fact seeking to do a "greater good" (and the utilitarian calculus from such procedures results in a net benefit to society so as to make them palatable), that in fact the most effective means need to be used to make sure the "end" is attained. And that would mean the means should be as comprehensive, as "effective", and pretty much as severe as possible.....

Cheers,

# posted by

Arne Langsetmo : 3:34 PM

All of which is to say -- and it's fairly amazing that this still needs to be said in this day and age -- if there is any single thing imaginable that the Senate, the Congress, and the world community have not "declined to do," it is to ban torture categorically.

That there is "debate" in this country surrounding these questions is itself a "shock to the conscience." And the tangle of outrage and incredulity with which we are slapped -- facing advocacy FOR, and the certain excercise of TORTURE, by the highest legal officers of our nation -- is almost insuperable.

Say what? Say WHAT?!

I find myself slapped into a state insensibility by the mere argument. Which is to say, I am foisted into confronting the criminal mindset -- specifically, the criminal mindset of torture advocates and torturers, themselves -- a place of brute moral and ethical bankruptcy, unaffected by reason, let alone "law."

How and when do we intervene in the life of Johnny Meth-Head, engaged in a string of armed liquor store robberies? Johnny's got his "reasons," his motivations, his rationale. Do we "debate" with the guy and entertain his prevarications and "justifications?"

And how (oh how!) and when do we intervene in the lives of national leaders, bent upon the commission of "supreme" international crimes?

Some radicals go all 7th-century on us, so we, the United States of America, are gonna go all 12th-century on them? And the belligerents, on both sides of this radical insanity, employing 21st-century technology and weaponry? Blood lust (not to mention oil lust) unleashed, and centuries of jurisprudence -- "civilization's" core, our core -- abandoned and defied.

It is just so monumentally horrible. I reel . . . stagger -- pommelled into insensibility.

The Cheneys and Addingtons and Yoos and DePalmas and Johnny Meth-Heads of this country are not going to be talked out of their criminal mindsets. Not even by the august, legal, one-two punch of Lederman and Horton, found here.

Arrest and trial is civilization's answer to criminal behavior.

# posted by

manonfyre : 3:35 PM

Marty,

Like Scott, I had hopes for Mukasey, but Scott's report rings sadly true. In fact it's the mirror image of Bush's ludicrous lie that Mukasey isn't privy to the (open) secret that waterboarding goes on and is torture plain and simple. Under the circumstances the Department of Justice has as much room for an attorney general as a crime ring has for a legal compliance officer.

Addington and Bradbury are our attorneys general, and they and those who've acted on their say-so – telecoms included – have too much to answer for to allow someone in who might force an answer. Even a course reversal or winding down are unthinkable: either would put past acts under the wrong light and, inevitably, the light of day. The Goldsmith, Comey, and Ashcroft stories say it all. Their departures narrowed the job description of the next Attorney General, if any, down to that of an accomplice in crime.

Torture and warrantless surveillance will therefore continue. So will political prosecutions, vote suppression, and pressure on US attorneys to play or pay, for we are headed into an election that, unless tampered with, will be a Republican fiasco and lead to new rules written on a clean slate as well as the accounting that none of these culprits has the balls to face.

Thanks are due to Pelosi for her bargain with the devil. When she took impeachment off the table she set us up for this crisis. The once "untold consequences" are now easily sayable, here and at a hundred other junctures. And given what's gone on, it would be easier for a scriptwriter to craft a Hollywood ending to Faust than pen a plausible future for constitutional governance and the rule of law in this nation.

The only confirmation that should come out of the Mukasey nomination – and any other I can realistically imagine – is confirmation of the above.

# posted by

occasional observer : 4:31 PM

Unfortunately, Chuck Schumer followed the Post's cue in his statement today justifying his intention to vote for Mukasey. According to the AP Story:

"Schumer, who was Mukasey's chief Democratic sponsor, said the retired judge told him that if Congress passes a law banning waterboarding "the president would have absolutely no legal authority to ignore such a law." Schumer said Mukasey said he would enforce any congressional ban the controversial interrogation method."

# posted by

Lawrence Moss : 5:29 PM

cmarshall4 said...

Torture doesn't have to be like in the movies where the evil Nazi has a table full of stainless steel torture implements. The body is capable of producing extreme distress from things, like a simple toothache...

A simple tooth ache is torture?

If there was any doubt as to the completely personal subjectivity as to the meaning of "torture," this post should remove all doubt.

# posted by

Bart DePalma : 5:33 PM

Phil said...

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

It's the 8th Amendment to the US Constitution- It's pretty fricken clear to me. Don't need no stinkin clarification!

Really?

Feel free to give us all an objective definition of what is and what is not a "cruel and unusual punishment." It is impossible to do so.

This passage is an open invitation to the courts to impose their own subjective policy preferences.

# posted by

Bart DePalma : 5:35 PM

JoyceLH said...

Brian De Palma said...

Brian is the director who made some pretty good film noir and and an execrable recent propaganda film implying that our soldiers are murderers and rapists. For good or ill, he is a distant relative of mine.

BD: "Captured enemy combatants who fit the definition of POW in GC3 may not be coerced in any way during interrogations.

al Qaeda and its allies do not fit the definition of POWs in GC3."

Doesn't matter. The prohibition against torture is in what's called the Common Article - and it's called the Common Article because it doesn't just appear in the Geneva Convention dealing with POWs, but in ALL the Geneva Conventions.

GC3, Art 17 on interrogation only applies to thise who fit the GC definition of a protected POW. This article does not extend to non protected enemy combatants.

# posted by

Bart DePalma : 5:40 PM

People who are not protected by Geneva III are protected by Geneva IV, which also prohibits torture, and does the US Constitution, not that I'd expect the fanatics who support these criminals care about that any more than they do the Geneva Conventions.

Meanwhile, I see that Senators Schumer and Feinstein have decided to vote for the Mukasey nomination -- that's disappointing but understandable. Once he's confirmed, they need to put his feet to the fire on this issue until DOJ comes clean and discloses the memos.

# posted by

Charles Gittings : 5:44 PM

A link to this blog should be sent to Sen. Schumer to remind him that waterboarding is already banned so "passes" is not the correct word ... "passed" is.

But, M. has a healthy vision (fantasy, perhaps) of executive power (which is not negated by "unconstitutional" legislation), so Schumer's assurance is probably rather naive anyway.

Talking Points Memo passes (natch) along a note from John Dean suggesting, as Congress did in the Nixon years, demand a special prosecutor be agreed to by the putative new AG or not confirm him.

Finally, the Senate confirming M. would bring to mind Justice Jackson's dissent in Korematsu:

"A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image."

Ditto when Congress reviews and approves unconstitutional and unlawful behavior. It worsens and normalizes it. Adds insult to injury. etc.

Schumer wants to settle. Is this what we have become?

# posted by

Joe : 9:00 PM

-- Ditto when Congress reviews and approves unconstitutional and unlawful behavior. It worsens and normalizes it. --

.

No so much when Congress does it. Congress and the executive don't have the same sort of deliberative mojo that the Courts are supposed to have -- although their respective spheres of duty are clearly different.

.

Congress does all sorts of weird, politically expedient things, ranging from paralysis to inaction, to finger pointing, to over-reaching. The ONLY principle is "Whatever it takes to be reelected."

# posted by

cboldt : 9:13 PM

it remains the case that the torture is, in fact, unlawful

But you've also given the opinion that the unlawful is immunized by a piece of paper from OLC, so it's hard to understand the reaction to the WaPo approach.

You've said it is immunized and that immunity is presumably ongoing and continuing until something, somewhere, somehow, ratchets it back.

You don't think the Sup Ct did it with Hamdan, bc the OLC piece of paper was still there. You don't think that the fact that no one in their right mind would ever call those things being done, and done cumulatively, anything but torture avoids the immunization.

What then?

Have Congress do nothing and allow the OLC opinions to stand unchallenged (if I understand what you've argued, even the statute won't change your immunization approach for so long as OLC still claims their interpretation)?

Rely only on statements in treaties with no executing legislation so that the President can claim his power to interpret?

I'm pretty blown away by the approach that anyone would think we need something other than the the plain language in the Constitution to make it very very clear that the things being done are unConstitutional, but even your own arguments are that Bush and the OLC have created a failsafe recipe for violent overthrow of any part of the Constitution they choose, and visiting any violence up on the persons of citizens and non-citizens that they choose. A piece of partisan paper. I can't really even call it partisan, since torture seems to have large bipartisan support in Congress.

How do you address your own catch-22 of "unlawful, but immunized"?

Wait for personalities to come and go at OLC?

There's a lovely thought for the stability of the rule of law.

I think either the argument is that, OLC opinions or legislation aside, torture is clearly criminal behavior prohibited by the Constitution or that OLC opinions and legislation can "make" torture legal or illegal, on whim.

# posted by

Mary : 9:24 PM

Joe said...

A link to this blog should be sent to Sen. Schumer to remind him that waterboarding is already banned so "passes" is not the correct word ... "passed" is.

Apparently the Senate does not believe this because they failed to pass a bill expressly making waterboarding illegal. No need to enact a bill if the current statute was at all clear.

# posted by

Bart DePalma : 9:51 PM

-- Apparently the Senate does not believe [that waterboarding is already banned] because they failed to pass a bill expressly making waterboarding illegal. No need to enact a bill if the current statute was at all clear. --

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As though Congress enacting a bill will make things clear.
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I've pointed out more than a few times that Congress passed legislation that is bipolar. Waterboarding is expressly forbidden by Congress, as being forbidden "cruel and unusual" per the Eight amendment, which has been imported to the ratification of the Convention Against Torture. The prohibition of this flavor of "cruel and unusual" was reaffirmed in October 2006, by passage of P.L. 109-366.

.

However, the forbidden activity of waterboarding carries no criminal penalty under that US law because the harm to the boardee doesn't suffer harm to the extent necessary to meet the definition of harm that Congress established for the war crime of cruel and unusual.

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Congress intends the practice of waterboarding to be banned, but imposes no penalty under law for engaging in the banned practice.

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"Cruel and unusual" has one meaning under the constitution, and a different meaning under the war crimes statute.

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Don't hold your breath for Congress to apply similar logic to tax law.

# posted by

cboldt : 10:21 PM

"the forbidden activity of waterboarding carries no criminal penalty under that US law"

Can I do it then? I know you don't mean me, of course, since if I did it to someone I didn't like, I would be liable. Others probably might disagree with you even in more narrow cases. But, hey, I'm just a simple taxpayer. I want to waterboard too w/o criminal penalty! wah!

[I assume btw if an federal officials breaks a law w/o a criminal penalty as such, impeachment is possible, civil penalties, and perhaps a requirement by law that only those not doing said act be able to serve (and get paid) in that position.]

As to Congress not being the same courts, sure. But, this doesn't mean their decisions -- especially in areas specific to their spheres that are largely 'poltical questions' not touched by the courts in most cases -- aren't important. In many cases, as the Federalist Papers etc. so argue, their "voice" is quite important.

Likewise, in real life, the courts are affected by legislative and executive action. See, e.g., Payton v. NY ("reasonableness" per 4A). This might not be appreciated by some people, but realistically, the courts are affected by what is deemed acceptable by political actors.

Courts have a special "mojo," if not as often as some like, but the other two branches aren't chopped liver. Many things in real life simply will not be addressed by the courts. Some standards should still apply.

If it is just what gets you elected or whatever, well, you don't respect the Constitution. This might be the case now, but it isn't as if it HAS to be or that we should deem that acceptable.

# posted by

Joe : 10:47 PM

In fact, as suggested by my legal cite, in various cases, legislative and societal action are important markers when courts interpret such things as 'due process' and 'cruel and unusual.'

Normalizing things -- for whatever reason -- by some legal alchemy can very well result in changing legal standards in the courts too.

# posted by

Joe : 11:05 PM

Bart said:

"Feel free to give us all an objective definition of what is and what is not a "cruel and unusual punishment." It is impossible to do so."

This, and Bart's other comments in re: the subjectivty of the definition of torture goes right to the heart of the matter, and this is another reason why even so much as slapping a restrained or otherwise helpless captive is objectionable. Bart's own rather liberal (heh) consideration of what constitutes torture illustrates his own point perfectly: treatment that I or many others find cruel and sadistic (waterboarding) is A-OK with Bart. (Makes me very glad he had no distant relations helping to draft the Bill of Rights.)

Aside from this, let's say we all somehow lost our senses and decided to agree that a slap, just one little slap was acceptable, was not abusive or sadistic; what about two slaps, then? Or three? Or two soft slaps and one very HARD slap? Or a punch? How about a kick to the gut or groin? That's not bad...we have men who do that professionally to each other for money...it's called "ultimate fighting." And what if the slaps and punches and kicks don't elicit "helpful" responses from the subject? After all that effort expended--in good faith, for a good cause--it would be a waste to stop there. How about pulling one, just one fingernail out with pliers? That'll show the bastard we mean business!! That motherfucker! How dare he try to kill us and then clam up when we want to ask him some questions? What? He says he's innocent and doesn't know anything? All the more proof he's a wretched fuck, a lying shit!!

Let's put some wires on his balls and give him a shock! That'll show him who's boss around here!

Ahem. Well, you get my point, I hope. Where does it stop? Where is the line between "acceptable"(sic) "coercive interrogation" and abuse and torture? If torture is subjective, how can we reach consensus on where it starts?

The Bill of Right's prohibition agains "cruel and unusual" punishment is broadly stated for just this reason: it is a blanket prohibition, as has already been stated here. We do not subject prisoners to abuse, both because of our fearful knowledge of it having been used against us by the King's men, and because of our repugnance at the destruction of the humanity of the men and of the regimes that practice torture.

# posted by

Robert Cook : 12:09 AM

-- Many things in real life simply will not be addressed by the courts. ... Some standards should still apply. --

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Many things in real life simply will not be addressed. Period, end of sentence. It's the way of the world. The application of standards (indeed, the application of all legal systems) bottoms out on force. Force of votes, passive resistance, physical force, etc., all old rhetoric here, by now.

# posted by

cboldt : 1:13 AM

There is a letter to the editor in the New York Times this morning (Sat., Nov. 3) stating an obvious reason why those who tortured on Bush's behalf need not worry about prosecution: Bush can pardon them before they face it.

# posted by

Henry : 5:50 AM

"the way of the world"

First, again, when dealing with various constitutional principles, the courts recognize what the "way of the world" (the use of international law, of clear issue here, suggests quite literally) happens to be, and takes it into consideration when deciding things.

And, as many note here over many posts, it's an ever changing thing, influenced by many things, including what our representatives do. See, especially, Prof. Balkin's interpretation of "due process," as applied to gay rights and other issues.

Second, a core issue here is that the "way of the world" is in various ways wrong now, and we need to change it. And, not enable the wrong, even if we cannot for various reasons stop it as such. Surely, not in a particularly heinous way.

Repeating the truism that life is tough and might makes right (or whomever has the money or whatever) doesn't change that. Talk about old rhetoric.

# posted by

Joe : 11:52 AM

Bart seems to think that it is reasonable to apply these techniques to people not covered by one section of the Geneva Conventions. Actually they are covered in the OTHER section of the Geneva Conventions...they are civilians. Civilians who may have violated the law. The Convention on Civilian Populations deals with civilians who attack occupying forces. They are given trials, they cannot be tortured. There is no such category in the Geneva Conventions as a "illegal enemy combatant". It's a legal fiction.

And the idea that some hard-core terrorist would recant after "a few seconds" of waterboarding is absurd. If the individual was so ready to turn over information they would have already done so, or none violent methods could have been used.

It's only the physical torture or threat of torture (mental torture) that triggers the mental stress necessary to obtain the confession or information.
It is, in fact, the involuntary confession or information that is the hallmark that this is torture. An individuals will has been broken by the procedure or a future procedure to the point that they give up information/confession (sometimes false...such as "I am a witch", or "I will convert to Christianity") that they would not give voluntarily.

One can waterboard a person repeatedly to the point where they break, they can't accept another bout. Same with stress positions or physical activities. Maybe you think that a decathlon of short-term tortures makes all of this okay? Hot room, cold room, waterboarding, flashing dark/lights in the room. High dB sound, silence, high dB, silence every two seconds...

"But we didn't play the loud music continuously, sir...we didn't waterboard them continuously. We gave them break every two seconds...then poured another gallon of water on their face!"

# posted by

cinnamonape : 2:04 PM

robert cook said...

BD: "Feel free to give us all an objective definition of what is and what is not a "cruel and unusual punishment." It is impossible to do so."

This, and Bart's other comments in re: the subjectivty of the definition of torture goes right to the heart of the matter, and this is another reason why even so much as slapping a restrained or otherwise helpless captive is objectionable...Aside from this, let's say we all somehow lost our senses and decided to agree that a slap, just one little slap was acceptable, was not abusive or sadistic; what about two slaps, then? Or three? Or two soft slaps and one very HARD slap? Or a punch? How about a kick to the gut or groin?

You make a very sound argument.

There is no way to objectively define what constitutes "torture" based solely on that term or the current definition of severe physical or mental pain or suffering.

Instead, you have offered an objective definition of where you would draw the line. Unlike "severe pain," your definition can be easily understood and followed.

While we all will differ on where to draw the line, I do not know why we cannot agree that the current statute does not draw anything one can call a clear line.

# posted by

Bart DePalma : 5:16 PM

While we all will differ on where to draw the line, I do not know why we cannot agree that the current statute does not draw anything one can call a clear line.

Because while there have been many statements by various service people who have undergone SERE training, which is supposed to represent torture that they may undergo if captured by the enemy (originally Russia, now others), and who have stated that the techniques are torture, you and other apologists continually come up with technically, if tortuously, accurate definitions to avoid what had been commonly accepted definitions used by our armed forces and legal system. And you have continually justified such arguments by stating that, on one hand, they are necessary techniques to have a triumph of will in the contest with the horrible boogie men as these techniques will crack the will power of hardened terrorists, while on the other hand they are so gentle that they will not even cause pain or trauma except, possibly, to an infant.

Such claims are farcically disingenuous, impossibly non-sensical to argue with, and repeated so often they gain currency by simple background noise. It's not that we can't come to an agreement; we had one already. It's just that we can't come to a new agreement on your terms (because 9/11 changed everything) which you would accept, and so you must continually ask your inane questions.

It's very much like Bush asking for bi-partisan agreement, and then stating that Congress must pass the law that he wants. It's bipartisanship, but only in the sense that the two parties came to an agreement that only one of them originally wanted, instead of meeting somewhere in the middle, or, heaven help us, somewhere near where it used to be accepted practice to act.

# posted by

Fraud Guy : 6:33 PM

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# posted by

Joe : 5:54 PM