Balkinization: Lowering the Bar: Well, At Least We're Not as Barbaric as the Spanish Inquisition

Lowering the Bar: Well, At Least We're Not as Barbaric as the Spanish Inquisition

Marty Lederman

Has it really come to this?

In my previous post I did not adequately convey just how chilling Steve Bradbury's testimony was today. It began early on: Rep. Nadler asked Bradbury how OLC could possibly have concluded that waterboarding is not torture -- After all, isn't the whole point of the technique to induce severe physical pain and/or suffering so as to compel recalcitrant detainees to talk? Doesn't its reported effectiveness -- most victims cannot withstand more than 30 seconds of it -- speak for itself? Of course it's designed to inflict severe physical suffering. And if it does so, as Bradbury concedes, it's prohibited torture, no matter what the justification might be.

Bradbury did not respond directly to Nadler's question (although later he tipped his hand as to why he has concluded that the CIA waterboarding is not torture -- see below). Instead, Bradbury tried to reassure Nadler, and later Representative Franks, that the CIA's waterboarding was not as bad as press reports would have it -- that our variant of the technique is materially distinct from the sort of water torture used by (i) the Spanish Inquisition; (ii) U.S. forces in the Philippines at the turn of the 20th Century; and (iii) the Japanese in World War II. In those earlier historical examples, there was a "forced consumption of a mass amount of water," and occasionally the interrogators would stand or jump on the stomach of the victim, sometimes leading to "blood coming of the victim's mouth." Which apparently crosses the line. Thankfully, we do not do such terrible things.

Some of you will recognize that the technique Bradbury is disclaiming is the one often called the "water cure." The CIA doesn't use that. Instead, the agency apparently is using the less dangerous version of "waterboarding" -- the sort popularized by the French in Algeria, and by the Khmer Rouge. This technique involves placing a cloth or plastic wrap over or in the person's mouth, and pouring or dripping water onto the person's head. The CIA technique is likely a variant of what Darius Rajali, in his encyclopedic and indispensable new book, calls "Dutch choking" (see pages 281-283) -- either that or, in the cellophane variation, perhaps the "dry submarine" (see 284-285). A couple of years ago, Rejali summarized the various water tortures in an e-mail:

[T]he "water cure" admits of several variants:
(a) pumping: filling a stomach with water causes the organs to distend, a sensation compared often with having your organs set on fire from the inside. This was the Tormenta de Toca favored by the Inquisition and featured on your website photo. The French in Algeria called in the tube or tuyau after the hose they forced into the mouth to fill the organs.
(b) choking - as in sticking a head in a barrel. It is a form of near asphyxiation but it also produces the same burning sensation through all the water a prisoner involuntarily ingests. This is the example illustrated in the Battle of Algiers movie, a technique called the sauccisson or the submarine in Latin America. Prisoners describe their chests swelling to the size of barrels at which point a guard would stomp on the stomach forcing the water to move in the opposite direction.
(c) choking - as in attaching a person to a board and dipping the board into water. This was my understanding of what waterboarding was from the initial reports. The use of a board was stylistically most closely associated with the work of a Nazi political interrogator by the name of Ludwig Ramdor who worked at Ravensbruck camp. Ramdor was tried before the British Military Court Martial at Hamburg (May 1946 to March 1947) on charges for subjecting women to this torture, subjecting another woman to drugs for interrogation, and subjecting a third to starvation and high pressure showers. He was found guilty and executed by the Allies in 1947.
(d) choking - as in forcing someone to lie down, tying them down, then putting a cloth over the mouth, and then choking the prisoner by soaking the cloth. This also forces ingestion of water. It was invented by the Dutch in the East Indies in the 16th century, as a form of torture for English traders. More recently it was common in the American south, especially in police stations, in the 1920s, as documented in the famous Wickersham Report of the American Bar Association (The Report on Lawlessness in Law Enforcement, 1931), compiling instances of police torture throughout the United States.

CIA officers who have subjected themselves to the CIA version of the technique -- probably (c) or (d), if Bradbury is to believed -- reportedly have lasted an average of 14 seconds before caving in. Yet no severe physical pain or suffering?! How can that be?

Bradbury later confirmed (see the video at 36:20-37:00) what I've often speculated here: OLC's view is that a technique is not torture if, "subject to strict safeguards, limitations and conditions, [it] does not involve sever physical pain or severe physical suffering -- and severe physical suffering, we said on our December 2004 Opinion, has to take account of both the intensity of the discomfort or distress involved, and the duration, and something can be quite distressing or comfortable, even frightening, [but] if it doesn't involve severe physical pain, and it doesn't last very long, it may not constitute severe physical suffering. That would be the analysis."

Let's be very clear: This so-called "analysis" is at the very core of the OLC justification for waterboarding, and possibly several other components of the CIA program, as well. And it is flatly, 100% wrong, and indefensible, for reasons I have discussed at length. The fact that Judge Mukasey continues to abide by it is a scandal. And the fact that Congress has not said a word about this legal linchpin of the OLC/CIA regime is even worse.

Waterboarding, even the CIA version, entails excruciating and intense physical suffering. That's why they use it. The account by "Scylla", set out below, describes the effects quite well. His conclusion?: "I'll put it this way. If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question. It's horrible, terrible, inhuman torture. I can hardly imagine worse. I'd prefer permanent damage and disability to experiencing it again. I'd give up anything, say anything, do anything."

And yet OLC concludes that this unimaginable physical suffering is not "severe." Why? Because it is so effective at inflicting intense, unparalleled suffering that it does not last very long.

To say that this is not severe physical suffering -- is not torture -- is absurd. And to invoke the defense that what the Spanish Inquisition did was worse, that we use a more benign, non-torture form of waterboarding -- after all, we don't stomp on the victim's chest! -- is obscene. And yet here we have a United States official invoking that justification today, in sworn testimony to Congress, without betraying the slightest hint of self-awareness of how grotesque it is . . . and no one so much as blinked, so inured are we to this discourse by now.

* * * *

Scylla's description of self-inflicted waterboarding that sounds as if it might be similar to that approved as lawful for use by the CIA:

[T]hose of you who know me will know that I am both enamored of my own toughness and prone to hyperbole. The former, I feel that I am justifiably proud of. The latter may be a truth in many cases, but this is the simple fact:

It took me ten minutes to recover my senses once I tried this. I was shuddering in a corner, convinced I narrowly escaped killing myself.

Here's what happened:

The water fills the hole in the saran wrap so that there is either water or vaccum in your mouth. The water pours into your sinuses and throat. You struggle to expel water periodically by building enough pressure in your lungs. With the saran wrap though each time I expelled water, I was able to draw in less air. Finally the lungs can no longer expel water and you begin to draw it up into your respiratory tract.

It seems that there is a point that is hardwired in us. When we draw water into our respiratory tract to this point we are no longer in control. All hell breaks loose. Instinct tells us we are dying.

I have never been more panicked in my whole life. Once your lungs are empty and collapsed and they start to draw fluid it is simply all over. You [b]know[b] you are dead and it's too late. Involuntary and total panic.

There is absolutely nothing you can do about it. It would be like telling you not to blink while I stuck a hot needle in your eye.

At the time my lungs emptied and I began to draw water, I would have sold my children to escape. There was no choice, or chance, and willpower was not involved.

I never felt anything like it, and this was self-inflicted with a watering can, where I was in total control and never in any danger.

And I understood.

Waterboarding gets you to the point where you draw water up your respiratory tract triggering the drowning reflex. Once that happens, it's all over. No question.

Some may go easy without a rag, some may need a rag, some may need saran wrap.

Once you are there it's all over.

I didn't allow anybody else to try it on me. Inconceivable. I know I only got the barest taste of what it's about since I was in control, and not restrained and controlling the flow of water.

But there's no chance. No chance at all.

So, is it torture?

I'll put it this way. If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question.

It's horrible, terrible, inhuman torture. I can hardly imagine worse. I'd prefer permanent damage and disability to experiencing it again. I'd give up anything, say anything, do anything.

The Spanish Inquisition knew this. It was one of their favorite methods.

It's torture. No question. Terrible terrible torture. To experience it and understand it and then do it to another human being is to leave the realm of sanity and humanity forever. No question in my mind.

Posted 5:51 PM by Marty Lederman [link]

Comments:

I almost drowned once myself, and the physical suffering was quite severe, and for many years afterwards I was aquaphobic, but if you asked me whether I'd rather drown again or lose all my digits, one by one, to a sledgehammer, I'd happily choose the drowning. Well, not happily, but easily. The case against this stuff is strong enough without resorting to zany hyperbole.

# posted by

Asher : 2:16 AM

Holy s**t. Holy s**t. I mean, I was already as anti-torture as anyone else who posts or comments at this blog, but I had to confess that I had no intuitive sense of just how bad waterboarding was before reading this post and Scylla's. Not now. F**k.

I suspect that the average person's inability to understand just how horrible waterboarding is just from a bare-bones description is why American interrogators have found it so attractive. Unless you've actually gone through it (like Scylla), it's easy to parody it as "a little water on the head" and to make light of Khalid Sheikh Mohammed breaking after only a minute-and-a-half of it. Hell, from what Scylla describes, 90 seconds, if this is really what KSM withstood, betokens inhuman endurance.

# posted by

Anonymous : 9:02 AM

Marty:

In order to have an intelligent discussion about whether the CIA waterboarding technique meets the statutory definition of torture, you need to know exactly what the technique is and is not. We are finally making progress in this regard.

It has been known for months, if not years, that the CIA waterboarding technique involves strapping the prisoner to a board placing saran wrap over the prisoner's nose and mouth, then running water over the wrap for seconds up to the minute and a half for KSM.

Bradbury was only the latest and certainly not the first to disclose this information. However, perhaps it took another DOJ lawyer to convince you.

As I posted here some months ago, the CIA waterboarding is nothing like the "water cure" which forces ingestion of water to cause serious bodily injury and actual physical pain. This point finally seems to be conceded.

Two further corrections are required now.

To start, there is no report that the CIA dunks the prisoner underwater as described in subsection (c) in Rejali's book. The reported CIA technique differs from subsection (d) in that no water is introduced.

Next, using anonymous internet "sources" like "Scylla" hardly smacks of rigorous academics. This fool sounds like one of the kids who play choking games.

Choke me in the shallow water
Before I get too deep
What I am is what I am
You what you are or what
What I am is what I am
You what you are

Eddie and The New Bohemians - "What I am."

Pardon the diversion into nostalgia, but it seemed apropos.

In any case, if you want a visual and realistic example of how the variations of waterboarding work, here is a video clip of former SF waterboarding Fox News reporter Steve Harrigan.

Phases One and Two are what Nance is describing and involve pouring water into the mouth and nose.

Phase Three is almost exactly what has been reported as the CIA technique. The SF place saran wrap over the nose and mouth and drop water from a gravy dropper over the wrap. Harrigan comments that this is not bad compared to the Nance techniques where water is forced into his mouth, then the panic hits him and he breaks.

Both the SF and Harrigan say that there was no pain involved. However, Harrigan was scared and then extremely panicked. Moreover, Harrigan reports that the mental recovery from this was very short.

While the Harrigan report lacks Scylla's kinky asides, it does have the benefit of being realistic.

# posted by

Bart DePalma : 9:04 AM

Bart:

Both the SF and Harrigan say that there was no pain involved.

Actually, if you read through the ensuing discussion thread on Scylla's post, he (rather convincingly, I find) clarifies that whatever pain was involved in his experience was merely incidental to what made it so horrifying:

It's not so much the pain. The pain itself is simply discomfort. There is a total instinctual panic that I felt that was not only uncontrollable, but seemed to me that the very idea of seeking to control it is itself inconceivable.

Why we should pretend that the deliberate infliction of anything remotely like this on anyone, regardless of the particular method, fits into some narrow and contrived statutory interpretation of torture (promulgated by the licensers of torture themselves!) is beyond me.

The amount of ideological entrenchment it takes to sing cheerily in the face of a description of something so horrible must be tremendous. Countless earlier threads of this blog have demonstrated the triumph of your will to believe what you're going to believe over whatever ability you may have once had to acknowledge the slightest possibility of being wrong. I guess that this one will be no exception.

# posted by

Anonymous : 9:34 AM

I'm flabbergasted that any human being can justify waterboarding. It's torture no matter how you slice it. Torture is unworthy of any civilized nation and as Dan Froomkin of the WaPo has pointed out many times, no one from President Bush on down has identified a single life that has been saved, a single plot that has been disrupted, due to torture.
All this talk about "It was only for a minute" is just dishonest word games.

# posted by

Rich Gardner : 11:11 AM

This technique is, at bottom, a mock execution -- but DOJ can't afford to acknowledge that fact, because everyone agrees that mock executions are unlawful.

# posted by

Unknown : 11:38 AM

ire said...

This technique is, at bottom, a mock execution -- but DOJ can't afford to acknowledge that fact, because everyone agrees that mock executions are unlawful.

This is a very interesting argument because the term "severe mental pain" in the torture treaty and statutes was meant to apply to mock executions and threats against comrades or loved ones.

However, it appears that the panic caused by waterboarding is not a voluntary contemplation of dying, but rather an involuntary gag flex reaction. For example, the Fox News reporter and all the CIA and military people who go through SERE know that they are not going to be killed, but they all involuntarily break because of the gag reflex.

# posted by

Bart DePalma : 12:01 PM

rich said...

I'm flabbergasted that any human being can justify waterboarding. It's torture no matter how you slice it. Torture is unworthy of any civilized nation and as Dan Froomkin of the WaPo has pointed out many times, no one from President Bush on down has identified a single life that has been saved, a single plot that has been disrupted, due to torture. All this talk about "It was only for a minute" is just dishonest word games.

Jonah Goldberg makes the opposite case rather well here.

# posted by

Bart DePalma : 12:07 PM

Can anybody explain to me why the line is drawn at "torture"? Why is any level of physical punishment an appropriate interrogation technique for America to use?

Is there some level of physical punishment that is not torture, but would be effective at getting truthful information out of a subject?

# posted by

John : 12:40 PM

However, it appears that the panic caused by waterboarding is not a voluntary contemplation of dying, but rather an involuntary gag flex reaction.

This is a completely meaningless difference.

For example, the Fox News reporter and all the CIA and military people who go through SERE know that they are not going to be killed, but they all involuntarily break because of the gag reflex.

# posted by Bart DePalma : 12:01 PM

What sort of secrets do they disclose? Did the Faux News reporter admit that he's nothing but a partisan hack? If they didn't "break", how much longer do you think the torture would have continued?

# posted by

Bartbuster : 12:48 PM

Both the SF and Harrigan say that there was no pain involved. However, Harrigan was scared and then extremely panicked. Moreover, Harrigan reports that the mental recovery from this was very short.

Of course, Harrigan is completely mentally deranged as a result of the waterboarding, and his reports can't be trusted. ;-)

FWIW, there is a difference between voluntarily enduring such, and being forced into such. And there's a difference between having it done by "friendlies" versus hostile interrogators. And there's a difference, perhaps the largest one, between having it done one time only, and having it done once, with the threat of continued waterboarding (or worse) until you start talking. In fact, it seems the effectiveness is not that the 'treatment' itself causes any "co-operation" either before or during, but rather the threat that it will be done repeatedly until the 'proper results' are obtained.....

Aside from whether the severe panic is in itself "severe pain ... or suffering", I'd note that just the threat implied by such certainly qualifies as a valid ('lather, rinse, repeat') "threat of imminent death".

What is truly abhorrent is that people are actually arguing about just how badly we can abuse detainees ... all the while saying that the Eighth Amendment would obviously prevent such treatment to even the worst axe-murdering pederasts actually convicted of their crimes (here at Update 3).

Cheers,

# posted by

Arne Langsetmo : 12:49 PM

However, it appears that the panic caused by waterboarding is not a voluntary contemplation of dying, but rather an involuntary gag flex reaction.

that assertion is flatly contradicted by Scylla's report, above.

# posted by

cleek : 12:52 PM

Baghdad, if I had the chance to waterboard you, do you think I could get you to admit to being a despicable rightwingnut scumbag? Heck, do you think I could get you to admit that waterboarding is torture?

# posted by

Bartbuster : 12:54 PM

Angels on the head of a pin?

However, it appears that the panic caused by waterboarding is not a voluntary contemplation of dying, but rather an involuntary gag flex reaction.

SFW (even if true)? Does 18 USC § 2340 require a "voluntary cotemplation of dying"? Oh, right. No. You just made that sh*te up. Also asserted but unsupported is the apparent contention that waterboarding causes only "an involuntary gag flex reaction" (and which furthermore doesn't define what such a "reaction" consists of).

Such hair-splitting to deny the obvious. If there were nerve endings in hair, "Bart" would be screaming in agony.....

Cheers,

# posted by

Arne Langsetmo : 12:56 PM

Arne, bartbuster: Please, don't start. Let's keep this comment thread relatively substantive.

# posted by

Marty Lederman : 12:58 PM

["Bart" DePalma cites the world-reknown intellectual Doughy Pantsload]: Jonah Goldberg makes the opposite case rather well here.

Jonah Goldberg also says that fascism is a "liberal" trait. He's as much a dishonest flack for the maladministration as you are, "Bart". And with a similar dearth of understanding of both the law and the real world. Doughy Pantsload ought to be in Iraq, carrying on his crusade to "pick up some small crappy little country and throw it against the wall, just to show the world we mean business."

Cheers,

# posted by

Arne Langsetmo : 1:02 PM

Prof. Lederman:

Arne, bartbuster: Please, don't start. Let's keep this comment thread relatively substantive.

Very well. I will invite the usuals over to my "Torquemada" post to continue any "Bartesque" discussion. I've been offering this, but the usual suspect seems to prefer to fill your blog with his retread crapola. Maybe he is of the considered opinion that everyone here is so dense that they need to be explained (in the Ring Lardner sense) thirty-seven times the same tired ol' stuff.

On my blog, I'd exercise the blogmaster function and delete any subsequent repetition of an assertion that is not supported or elaborated on.

Cheers,

# posted by

Arne Langsetmo : 1:10 PM

Arne, bartbuster: Please, don't start. Let's keep this comment thread relatively substantive.

# posted by Marty Lederman : 12:58 PM

You can easily achieve that by banning Baghdad. I'm going to keep responding to his bullshit.

Besides, I feel relatively certain that waterboarding Baghdad is relatively substantive, and probably a lot of fun.

# posted by

Bartbuster : 1:29 PM

Goldberg makes an idiotic case that presumes, without any hard evidence, that CIA misconduct is limited to what they've admitted was done. Remember, the CIA was asked, very explicitly and many times if they had any further relevant information on how their information from the three named individuals was obtained.
Congress was lied to over and over again as the CIA said "No, we've given you everything we have." Years later, we learned that videotapes of the interrogations were destroyed.
The Democrats who were given briefings were not given the opportunity to discuss what they knew with any of their own advisors, let alone with the public, so I very much question how meaningful their "consent" really was. Some of them did indeed make objections, objections that were simply ignored.
Goldberg says it's now harder to engage in prohibited practices. But the guilty individuals have not seen the insides of jail cells, heck, they haven't even been publicly identified. The US still hasn't even gotten the full story on the US Attorney purge, let alone punished the individuals responsible for it.
Goldberg makes a lousy case.

If this were the 1980s and a Libyan tried to make precisely the same case with a downed US pilot that Bart is making now with al Qaeda detainees, enraged conservatives like Bart would very quickly see to it that the Libyan was dancing on air from the nearest tree. There are people who believe that brutality is in the eye of the beholder and there are those who believe in the rule of law.

# posted by

Rich Gardner : 1:49 PM

"[S]evere physical suffering, we said on our December 2004 Opinion, has to take account of both the intensity of the discomfort or distress involved, and the duration, and something can be quite distressing or comfortable, even frightening, [but] if it doesn't involve severe physical pain, and it doesn't last very long, it may not constitute severe physical suffering. That would be the analysis."

So, it's only torture if you hold out against it. If you submit quickly then it isn't torture.

# posted by

-bwg : 1:54 PM

So, it's only torture if you hold out against it. If you submit quickly then it isn't torture.

# posted by -bwg : 1:54 PM

The Al Qaeda prisoners are really torturing themselves. There ought to be a law against that...

# posted by

Bartbuster : 1:57 PM

This post is fine, and apparently necessary. But I am much more concerned about the lowering of the bar on the part of torture opponents than by the criminals who work for the current ruling regime.

Even engaging the question of whether waterboarding is torture puts us where the regime wants us. What's next, a discussion of situations where slavery is fine?

I've written about this myself:

...for glass-half-full adherents, the Pincus article blogged here previously can be viewed as playing a constructive role in setting the baseline that waterboarding is torture.

Sourpusses like me object to any such moving of the goalposts, and insist on maintaining the pre-September 2006 clarity that torture is torture. Sleep deprivation is torture, forced standing is torture, forced nudity is torture, dousing with cold water is torture, sustained loud music is torture, sexual humiliation is torture. Not "aggressive interrogation techniques that some human rights activists say border on torture". Torture. Crimes against humanity and war crimes, for which Dick Cheney will someday stand trial.

But I'm nobody. Fortunately, Scott Horton made the same point recently and clearly at his 'No Comment' blog at harpers.org. Unfortunately, I can't find the link right this moment. Will return.

# posted by

Nell : 2:03 PM

Here is Scott Horton, from Feb. 2:

Is the Torture Discussion Too Narrow?

Questioning and discussion continues to focus on waterboarding. Alabama’s Jeff Sessions says he just doesn’t understand all this focus on waterboarding since it’s closely controlled and rarely used.

The debate focuses on it for a simple reason: if Attorney General Mukasey and his sidekick Steve Bradbury can conclude that waterboarding—which is iconic torture—is lawful, then there is very little that they won’t be able to approve. In effect, the practice of waterboarding is being used to bash through the prohibition against torture altogether.

But in another sense, Sessions is right. Other torture practices are far more widespread and therefore arguably still more important. I’d focus on four techniques which are plainly torture and are being used by the CIA today:

• Hypothermia

• Long-time standing

• Sleep deprivation in excess of 2 days

• Psychotropic drugs

In addition to these techniques, there are the almost ubiquitous Kubark techniques, which used a combination of sensory deprivation followed by sensory overload and which can effectively turn their subject into a vegetable. The application of the first four certainly constitute criminal acts under U.S. law. The Kubark process probably does as well. And on these points, a debate has hardly even been engaged.

# posted by

Nell : 2:20 PM

Nell,

I highly recommend this post on the morality of torture. The author makes the point:

[I]t's the violation of the integrity of the person by depriving them of all their power over themselves, and . . . somehow erasing the integrity of their 'self'. Prison doesn't do that; even Joe Arpaio - who keeps his prisoners in tents, offers them no recreation and dresses them in pink - does not violate their integrity in the ways that I'm describing - they still make choices, have some responsibility as to their behavior. Bluntly, I'd rater shoot someone than torture them harmlessly. I believe it's more moral; I'm violating their 'person-ness' less through an act of outright violence than through one that seeks to break their ownership of themselves in the ways that torture does.

That explains why waterboarding morally amounts to torture. It "seeks to break ownership of self." And it explains what is done with consent is qualitatively different from what is done without consent -- consent to waterboarding (or fraternity hazing or whatever) is not a violation, but an expression of "ownership of self."

Actually, I am perfectly open to defining torture only as intentional infliction of severe pain, so long as it is recognized as part of a complex of behaviors that "seek to break ownership of self," a complex that includes mock executions, waterboarding, sexual abuse, sensory deprivation and sensory overload, use of drugs etc etc. The point is, if it "seeks to break ownership of self," it is a kind of monstrosity we must not allow.

I realize this is not a viable legal definition of torture, but it is the best moral definition I have heard yet. The legal definition should seek to uphold the moral definition, not be something to be evaded by sophistry in order to justify what is morally equivalent to torture.

# posted by

Essayist-Laywer : 2:43 PM

However, it appears that the panic caused by waterboarding is not a voluntary contemplation of dying, but rather an involuntary gag flex reaction. For example, the Fox News reporter and all the CIA and military people who go through SERE know that they are not going to be killed, but they all involuntarily break because of the gag reflex.

I agree, Bart, that the people who VOLUNTARILY underwent waterboarding knew they weren't getting killed.

But the terrorist suspects almost certainly WERE NOT told that they wouldn't be killed. And therefore, waterboarding clearly is a mock execution (which is a long-recognized category of torture that has been held by several federal courts sufficient to violate the Convention Against Torture and to give rise to liability under 28 USC Section 1350).

# posted by

Dilan : 2:44 PM

E.L.: I agree on the moral analysis. A (Kantian) ethicist named David Sussman wrote a paper in Philosophy and Public Affairs (Winter 2005; 33:1, 1-33) called "What's Wrong With Torture?" that makes a similar case.

A taste of his argument:

In this article, I defend the intuition that there is something morally special about torture that distinguishes it from most other kinds of violence, cruelty, or degrading treatment. ... I deny ... that the wrongness of torture can be fully grasped by understanding it as just an extreme instance of these more general moral categories.

...

I argue that torture forces its victim into the position of colluding against himself through his own affects and emotions, so that he experiences himself as simultaneously powerless and yet actively complicit in his own violation. So construed, torture turns out to be not just an extreme form of cruelty, but the pre-eminent instance of a kind of forced self-betrayal, more akin to rape than other kinds of violence characteristic of warfare or police action. (3-4)

The entire article, if you can get your hands on it, is quite good.

# posted by

Anonymous : 3:03 PM

Goldberg makes an idiotic case that presumes, without any hard evidence, that CIA misconduct is limited to what they've admitted was done.

In fact it's now rumored – or "rerumored" since extraordinary rendition and contractor torture at Abu Ghraib had made it clear – that the CIA outsourced abusive interrogation. It always had reason to do this since the US anti-torture statute only reaches US persons.

Even engaging the question of whether waterboarding is torture puts us where the regime wants us. What's next, a discussion of situations where slavery is fine?

This is a good point, but all the more reason to turn the discussion around and bolster the conviction that it's all barbarism. It's wearying. Robert Jay Lifton's study of Nazi doctors took a great deal out of him, changing him for life. But he had to do it. Now we are all Liftons.

The sanitizing of waterboarding is just an instance of something wider, which we should not forget. Just today I got an email from a British national in Japan who had a few drinks with an American airman. He'd flown the A-10. He described the reality of "smart bombs," how the generals tell the politicians how smart these weapons are, and then the politicians shout this to the world. But, the airman went on, it just isn't so. The weapons often go dumb. If the plane's not on the right trajectory, the laser-guided bomb doesn't have a chance of hitting target. Young kids fighting on the ground would scream over the radio in tears, begging for air support. When it came it hit a civilian area. The kids just panicked, not ready for such carnage and fear. A person on the scene could see how it all goes wrong all too often, for all the talk of "minimal collateral damage."

Interesting, I thought, that McCain is an airman.

# posted by

Occasional Observer : 3:58 PM

Rich:

Goldberg makes an idiotic case that presumes, without any hard evidence, that CIA misconduct is limited to what they've admitted was done.

I discuss that point here (with numbers and specifics here.

Trying to get into a "definitional" dogfight about what is or is not "waterboarding" (and what it is) obscures the much larger picture of what we've been doing (and that is the intent of those that keep doing so). It's pretty horrible, so let's sit all day and pick nits on what's "too much pain".

Cheers,

# posted by

Arne Langsetmo : 4:26 PM

rich said...

Goldberg makes an idiotic case that presumes, without any hard evidence, that CIA misconduct is limited to what they've admitted was done.

Huh?

Arguing the evidence in the record is the basis for all legitimate cases.

Goldberg does not have to substantiate your unfounded allegations to make his case.

If you think he is wrong, offer your own evidence. Since all you offer is unfounded surmise, Goldberg's case stands unrebutted.

# posted by

Bart DePalma : 5:07 PM

Arguing the evidence in the record is the basis for all legitimate cases.

Numbnuts, he's not arguing the evidence, he's arguing that the currently known evidence means there isn't any other evidence that we don't yet know about.

# posted by

Bartbuster : 5:17 PM

Bagdad, you need to update the comments on your blog.

# posted by

Bartbuster : 5:20 PM

enlightened layperson said...

I highly recommend this post on the morality of torture. The author makes the point:

[I]t's the violation of the integrity of the person by depriving them of all their power over themselves, and . . . somehow erasing the integrity of their 'self'. Prison doesn't do that; even Joe Arpaio - who keeps his prisoners in tents, offers them no recreation and dresses them in pink - does not violate their integrity in the ways that I'm describing - they still make choices, have some responsibility as to their behavior. Bluntly, I'd rater shoot someone than torture them harmlessly. I believe it's more moral; I'm violating their 'person-ness' less through an act of outright violence than through one that seeks to break their ownership of themselves in the ways that torture does.

This is nonsensical.

To start, the only act which deprives someone of all power over themselves is to kill them. So long as you are living, you have some measure of power over yourself.

Moreover, war is all about taking away the enemy's power over themselves and everything else around them.

Killing is the default mode of war.

About three time more often than killing, the military will physically injure and maim the enemy.

Both of these are far worse than waterboarding.

If the enemy is captured, he only receives control over his person to the extent provided for under treaty, which is quite minimal if the enemy has been violating the laws of war.

# posted by

Bart DePalma : 5:24 PM

Bart seems to have enemies but he shouldn't be banned from this website or waterboarded either.

Bart it is silly to attack a rival's position because the rival questions the self-interested revelatiosn the CIA has made in this matter, and you know it. By its nature the CIA is secretive, so it's very logical to assume we are only being told the minimum.

Let's try to think using the golden rule. What would we say if some foreign government or group waterboarded an American, as someone mentioned in the Libya example. And our international esteem IS suffering under this administration, and I voted for W twice.

What goes around comes around, and our government has people all over the world, in unsavory places, so we are sending the message that if it is okay for our government to torture (or waterboard, if somehow it's not torture ... ) others, then this government's citizens can be tortured (or waterboarded ...)

We have DEA agents in over 90 countries.

Bart: what would you say if a DEA agent in Afganistan or Colombia was waterboarded into divulging a source or a secret by a narco-gang? Seriously, what would you say? We all await your response.

# posted by

abu hamza : 6:02 PM

# posted by

abu hamza : 6:03 PM

A (Kantian) ethicist named David Sussman

Since Kant argued that one cannot morally lie, even to a murderous axe-wielder about his intended (innocent) victim's whereabouts, I'm not quite sure that a Kantian ethicist's opinion on torture is going to sway many fence-sitters.

Just sayin'.

# posted by

Anderson : 6:07 PM

Anderson: For starters, Kantian ethics is far more subtle than you give it credit for. Second, Sussman's analysis is broadly Kantian, but it's not strictly so, at least not in any caricaturish "autonomy-is-everything" sort of way. Nor does it consist in some rote "application" of the Categorical Imperative, something Kantian ethicists rarely do anyway. It's a worthy argument that really stands or falls on its own two legs.

# posted by

Anonymous : 8:03 PM

Bart:

This is nonsensical.

Maybe you think it's wrong, but it's a stretch to call it "nonsensical."

So long as you are living, you have some measure of power over yourself.

Only on an utterly vacuous and/or empirically false definition of "power over yourself." For instance, someone driven by the most gruesome but non-fatal torture imaginable, bound hand and foot, might have "power over himself." Maybe he has said power, but only in that trivial dispositional sense that he is the sort of thing that tends to have power over itself in normal circumstances. Kinda like how water is disposed to boil at 100 degrees Celsius at standard temperature and pressure. Alter the pressure over water sufficiently, and you can get it to boil at room temperature, or keep it from boiling at hundreds of degrees.

If what we're looking for is the idea that under torture a person has "power over himself" regardless of the circumstances of the torture, that's gotta be false.

Moreover, war is all about taking away the enemy's power over themselves and everything else around them.

Really? If so, your theory of war is revealing. Are you saying that if a war is justified, then literally anything that takes away the enemy's "power over themselves" goes, including anything that takes away the enemy's power over its environment?

Does that include collective punishment? "Total war"? Intentional targeting of civilians as a means of demoralizing armed combatants? (I.e. on your theory of war, do civilians count as something to be found "around" the enemy?) Or, since on your theory of power over self you still have power over yourself as long as you're alive, is war all about tracking down every last enemy and making sure that he is dead?

What I'm after here is actually related to your more modest argument that "Since killing is justified in wartime, so must torture, since torture isn't as bad as killing." Assuming for the moment that a war is justified, the circumstances behind killing in combat and torture seem to be morally distinct. Killing in combat is justified because, given the nature of the case, it is the only way to achieve a justified end. (Unless you're contending that once war is declared, the moral universe turns upside down and killing becomes a positive good. ARE you saying that?) Even assuming that the end of combat can be (partly) described as "depriving the enemy of power over self and surroundings," it seems that once someone is taken prisoner one has effectively deprived them of control over self. The means is achieved-- unless, of course, you are meaning to say that it would be better simply to kill all the enemy, since that would effectively subdue them more than any available alternative.

So why, other than hypothetical good consequences that are supposed to follow from torture that you (and the Bush administration) have been unable to meaningfully substantiate, would be the point of depriving a prisoner of power by torture?

Unless 'the point of torture is simply torture,' as Andrew Sullivan is fond of saying?

# posted by

Anonymous : 8:11 PM

Abu Hamza:

Bart it is silly to attack a rival's position because the rival questions the self-interested revelatiosn the CIA has made in this matter, and you know it. By its nature the CIA is secretive, so it's very logical to assume we are only being told the minimum.

He ignored it when I pointed to the "Taxi to the Dark Side" documentary, which recounts various abuses (along with "rounds of interviews with conservative Republicans and intelligence officers who conclude that not only did the United States commit war crimes in Guantanamo and Abu Ghraib, it did so without gleaning much intelligence. The film notes that of the hundreds of prisoners detained since September 2006 by U.S. forces in Afghanistan and Iraq, only 1 percent have been convicted. Meanwhile, of the more than 100 deaths in U.S. custody, 37 have been officially declared homicides by the U.S. military.")

This, to "Bart", is not "evidence". Personal accounts (even affidavits under oath of Khalid el-Masri) are not "evidence". The various claims of others as to the treatment they endured is not "evidence", not the accounts of U.S. gummint people who were disgusted at what they saw.

Because in BartWorld™, "evidence" consists of what "Bart" alleges (or what Doughy Pantload at the NRO scrawls in some Op/Ed screed), not of what would actually be admissible in court and triable as such to a jury. Such is the state of the legal profession in Colorado, it seems.

This is why we would appreciate it if you manage to drive him off.

Cheers,

# posted by

Arne Langsetmo : 8:17 PM

Okay, I was out for longer than I intended to be. Goldberg spends about half his article talking about how restrained and civilized US interrogators were. Problem with that theory is that it rests on the presumption that we know everything the CIA did. I and others have shown that's not a reliable presumption. There's excellent reason to believe that the CIA did much more. I'm not going to go back over those reasons, you can re-read the comments yourself.
Second, and more generally, I agree that we shouldn't spend time hashing over definitions ans what exactly constitutes torture versus harsh interrogation techniques. I'll just say this: the proper comparison for the US is not al Qaeda or Saddam Hussein or the Spanish Inquisition, it is, as the first governor of the Plymouth Bay Colony put it, "The City on a Hill." We should conduct ourselves as a city where God would be pleased to make His residence. Obviously, we're never going to come up to that lofty standard as we're, after all, mortals. But that should always be our goal. It's simply not good enough to say "Well, we're not as bad as al Qaeda." Of course we should try to survive, of course we should defend ourselves. But Bush has failed to demonstrate that his methods are necessary to do that. We don't need to act like barbarians.

# posted by

Rich Gardner : 8:47 PM

Baghdad, I don't understand why you're avoiding my question. How long do you think it would take me to waterboard you into admitting that you played a key role in the 9/11 attack?

# posted by

Bartbuster : 10:04 PM

What I'm after here is actually related to your more modest argument that "Since killing is justified in wartime, so must torture, since torture isn't as bad as killing."

Blackstone rejected this argument almost 250 years ago:

"[S]lavery is held to arise [by the law of nations] from a state of captivity in war.... The conqueror, say [some experts], had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is an untrue position [to say that] a man may kill his enemy: he has only a right to kill him in particular cases -- in cases of absolute necessity, for self-defence -- and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave an enemy when the war is over."

I modernized the spelling, punctuation, and typesetting.

# posted by

Mark Field : 10:20 PM

Goldberg’s piece for National Review Online ( http://article.nationalreview.com/?q=MjM2ZDRlOWY4OTdjMWFiNjZlYWUwZmNiYjRjNGQwZDM=&w=MA== ) is junk. In the piece, he cited John Kiriakou as approving the use of waterboarding because it forced the victim to yield useful information; had Goldberg done minimal research, though, he would have discovered that Kiriakou now disavows torture and recommends other interrogation techniques (see, e.g., http://thinkprogress.org/2007/12/11/kiriakou-white-house/ ). At the end of the piece, he claims that waterboarding is okay in exceptional circumstances, meaning, presumably, the “ticking bomb” scenario routinely trotted out by people trying to justify torture, in spite of the multiple implausibilities the scenario relies on. It would be very nice if Goldberg and other people making political arguments took the time to consider counterarguments and do research, instead of whipping out pro forma pieces that only reassure their fans.

SRS

# posted by

Steven R. Stahl : 10:52 PM

Mark: Thanks for the Blackstone quote! I'm not in law, so I don't know much Blackstone. Does he say much else about the law of war?

I would simply add that the moral prohibition against "torture, abuse, and plunder" should not only apply "when the war is over," but also to enemies taken prisoner while hostilities are ongoing. I take it that this is the standard now prevalent in international law, right?

# posted by

Anonymous : 8:07 AM

BDP:

1.Jonah Goldberg has no legitimacy, either as a thinker or even a partisan hack.

2. It IS simulated execution...that's then entire point.

3.If we should all be on the gleefully-fascistic Goldberg express, then extend his logic in this phrase "And that’s it. Less than five minutes, three awful men, five years ago."

I submit if you even try to justify that sentence to explain the class of persons that are "awful", such that state-promulgated torture is acceptable, then you have no place in a Western pluralistic society, much less purportedly "leading" or otherwise being in a position of power in that society.

I will tell you what it is, however: Barbarism. Naked, raw barbarism masquerading as some higher ideal. An analogue of Shari'a for America's bottom-dwelling Christian right.

# posted by

Der Schatten : 9:16 AM

Bart often refers to the default mode of war as killing. This is true, and we should all bear this in mind, as it simply underscores the absolute immorality of war. This is why the ONLY valid basis to go to war--if there is a valid basis to do so--is to defend oneself against an unavoidable and imminent attack by an aggressor nation.

We had no self-defense basis to go to war in Iraq or Afghanistan, or in Viet Nam, or Korea, or in, frankly, most of the wars we have been involved in during the life of our Republic. Lacking a self-defense basis, most of our wars have been immoral without justification; they have been exercises in mass murder, purely and simply. If we want to agree that torture is "less bad" than killing, this is simply to say that torture is a lesser crime. It does not mean that torture is not a crime.

# posted by

Robert Cook : 10:25 AM

I'm not in law, so I don't know much Blackstone. Does he say much else about the law of war?

No, Blackstone wrote about the law of England (on which he is THE authority for the 18th C), but only mentioned the law of war in those few instances when it was relevant to his real topic.

I would simply add that the moral prohibition against "torture, abuse, and plunder" should not only apply "when the war is over," but also to enemies taken prisoner while hostilities are ongoing. I take it that this is the standard now prevalent in international law, right?

Yes. The current standard is set forth in a series of Geneva Conventions, to all of which the US is a party.

# posted by

Mark Field : 10:57 AM

steven r. stahl said...

Goldberg’s piece for National Review Online is junk. In the piece, he cited John Kiriakou as approving the use of waterboarding because it forced the victim to yield useful information; had Goldberg done minimal research, though, he would have discovered that Kiriakou now disavows torture and recommends other interrogation techniques

Kiriakou is pitching the CIA's line in what appears to be part of a broad and rather effective public relations counter offensive over the past few months.

Kiriakou said waterboarding was necessary and effective when we had the al Qaeda leadership, but is not currently necessary. This is also the CIA pitch.

Of course, if we capture another one of the al Qaeda top three who will not voluntarily provide intelligence, one guess whether Kiriakou and the other folks who actually fight this war will think that waterboarding is necessary again.

Indeed, it will be interesting to see whether Obama or McCain would (will?) think it was necessary under those circumstances.

At the end of the piece, he claims that waterboarding is okay in exceptional circumstances, meaning, presumably, the “ticking bomb” scenario routinely trotted out by people trying to justify torture, in spite of the multiple implausibilities the scenario relies on.

Not really. While the ticking time bomb scenario is one of the grounds which might be used in the future, what we are really talking about are situations where we have captured a source who is either himself a high officer (KSM) or knows of the location of a high officer (Zubaydah) and will not provide timely and actionable intelligence under standard interrogation.

Goldberg's legitimate and compelling argument, as reinforced by Kiriakou and others, is that the CIA spent less than five minutes waterboarding three high value prisoners who consequently provided actionable intelligence that allowed us to roll up much of al Qaeda, cripple dozens of attacks in the works and save hundreds if not thousands of lives.

This is your moral equation in a nutshell.

# posted by

Bart DePalma : 11:20 AM

"Goldberg's legitimate and compelling argument, as reinforced by Kiriakou and others, is that the CIA spent less than five minutes waterboarding three high value prisoners who consequently provided actionable intelligence that allowed us to roll up much of al Qaeda, cripple dozens of attacks in the works and save hundreds if not thousands of lives."

How do we know any bit of this statement is true? Because the government says so? This government has already demonstrated itself to be thoroughly dishonest repeatedly, caught in many lies. I wouldn't accept a weather report from this administration at this point. And--assuming for argument's sake there's any trace of truth to their claims--how do we know that we couldn't have secured equally valuable intelligence through non-abusive interrogation methods?

This government applies its innate sadism through policy initiatives and justifies it after the fact.

# posted by

Robert Cook : 12:59 PM

Bart, you need to think about the subject before making a bunch of assertions, and to read the text accurately. You misrepresented Kiriakou’s position in the Think Progress piece http://thinkprogress.org/2007/12/11/kiriakou-white-house/ , and your stance is nothing more than “The end justifies the means.” Conservatives online such as Goldberg are notorious for not writing to persuade, but writing instead to assure friends that their beliefs are correct. Try a little intellectual honesty.

SRS

# posted by

Steven R. Stahl : 1:15 PM

I highly recommend this video of a presentation by history prof Alfred McCoy. It's about an hour long. It's called 'A Short History of Psychological Torture'.
http://www.youtube.com/watch?v=ccEudcvc1lM

# posted by

Dick Durata : 3:22 PM

Baghdad, since you won't answer my question, how about if I back it up a step.

Do you think I could waterboard you into admitting you played a key role in the 9/11 attack?

# posted by

Bartbuster : 9:22 AM