Balkinization  

Thursday, April 24, 2008

"The Underdeveloped Jurisprudence of the Forcing/Pouring Distinction"

Marty Lederman

There have been several accounts in recent days of the Vice President and several agency heads and other high government officials (Ashcroft, Rice, Powell, Tenet, Gonzales, Rumsfeld, et al.), convening meeting after meeting in which they deliberately and dispassionately formed a consensus that the United States should establish a systematized, bureaucratic regime of officially sanctioned waterboarding and other plainly proscribed war crimes.

These stories have struck me as old news: After all, last year the President himself publicly boasted of having personally authorized the CIA black sites program and its "enhanced interrogation techniques," which we know to have included waterboarding, hypothermia, stress positions, severe sleep and sensory deprivation, threats to detainees and their families, etc. -- all conduct that is prohibited by several legal norms and that this nation has traditionally prosecuted as war crimes when engaged in by others. If the President authorized it, well then it should come as no shock that there would first have been principals meetings at which this all-important program was discussed and recommended.

What is alarming -- grotesque, even -- is not that such meetings occurred, but that, as far as we know, no one at such meetings interrupted the flow of discussion to point out the obvious -- namely, that these were the highest officials of the most powerful nation on earth, calmly discussing torture and cruel treatment that has long been universally condemned and legally proscribed. The JAGs understood this immediately when the regime of official torture and cruelty seeped into the military. Jim Comey, when he got wind of it, warned DOJ colleagues that they would all be ashamed when the world eventually learned of it. For goodness' sake, as Robert Mueller testified today, even the FBI -- those cowardly, shrinking violets -- quickly recognized this for what it was. And it's not as if the CIA itself was sanguine about the legality of what it was being urged to do: According to a declaration of the information review officer for the CIA's clandestine service court in a current FOIA case, "[t]he CIA's purpose in requesting advice from OLC was the very likely prospect of criminal, civil, or administrative litigation against the CIA and CIA personnel who participate in the Program."

So why wasn't there any alarmed dissent -- a "Snap Out of It!" moment from Colin Powell, perhaps -- at the principals meetings? How could that not have occurered?

Of course, part of the explanation no doubt was the sheer panic and terror these officials felt in the wake of September 11th, with the prospect of further devastating attacks appearing to be all-too-feasible, and possibly imminent. But it's increasingly clear that another essential factor was that these government officials convinced themselves that this was program was all hunky-dory, and a world apart from the torture regimes with which they were familiar, because this time, the administrative regime was being sanctioned and overseen by trained professionals -- the best lawyers in the government, as well as physicians and psychologists.

So, for example, the principals were plainly moved by the insistence of OLC and the Department of Justice that there were countless sophisticated, heavily footnoted reasons why the numerous apparently pertinent legal limitations that would prevent the CIA program -- the Constitution, the Geneva Conventions, the Torture Statute, the Convention Against Torture, the UCMJ, the assault and maiming statutes, etc. -- did not, in fact, apply to this war, to this agency, to these detainees, to these secret locations, . . . to this Commander in Chief.

For instance, the Attorney General himself sat in on these meetings, and it appears that the nation's chief law enforcement officer assured the assembled participants (including himself) that when the Senate gave its advice and consent to the Convention Against Torture, it included a reservation "defin[ing] torture as something that leaves lasting scars or physical damage," such that "no, waterboarding does not violate international law." Yes, John Ashcroft insisted on this legal justification just the other day, as an explanation of how he could have approved waterboarding. Needless to say (well, it used to be needless, anyway), it ain't so -- there's no such Senate reservation about lasting scars or physical damage. But John Ashcroft continues to this day to believe that there was!

OK, but what about the very well-known fact that the "water treatment" was used by the Spanish Inquisition; by U.S. forces in the Philippines at the turn of the 20th Century; and by the Japanese in World War II -- and that in each case it was universally condemned as unlawful torture? Ashcroft's interlocutor the other day, one "Elsinora" at Knox College, asked him whether he was familiar with the judgment at the Tokyo Tribunal against Yukio Asano for having employed the "water treatment" in this manner, against American troops for purposes of obtaining intelligence information: "The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach." The allies sentenced Asano to fifteen years hard labor for this conduct. Here's the remarkable exchange between Elsinora and Ashcroft on the Asano precedent:

Elsinora: Since Yukio Asano was trying to get information to help defend his country--exactly what you, Mr. Ashcroft, say is acceptible for Americans to do--do you believe that his sentence was unjust?

ASHCROFT: Now, listen here. You're comparing apples and oranges, apples and oranges. We don't do anything like what you described.

Elsinora: I'm sorry, I was under the impression that we still use the method of putting a cloth over someone's face and pouring water down their throat...

ASHCROFT: "Pouring"! "Pouring"! Did you hear what she said?: "Putting a cloth over someone's face and pouring water on them."

That's not what you said before! Read that again, what you said before [about the Asano case]!

Elsinora: "The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach."

ASHCROFT: You hear that? You hear it? "Forced"! If you can't tell the difference between forcing and pouring...Does this college have an anatomy class? If you can't tell the difference between forcing and pouring... .

As my colleague David Luban put it today, this Ashcroft exchange -- and a virtually identical attempt by Steven Bradbury before Congress last month to distinguish U.S. waterboarding from that of the Spanish Inquisition -- confirms "the underdeveloped jurisprudence of the forcing/pouring distinction."

You see, the CIA apparently uses the less dangerous version of "waterboarding" -- not the Spanish Inquisition method, but the technqiue popularized by the French in Algeria, and by the Khmer Rouge -- involving the placing of a cloth or plastic wrap over or in the person's mouth, and pouring or dripping water onto the person's head. That's the civilized version of waterboarding -- the benign, anodyne, variant of the water treatment, the kind carefully administered by professionals. We would never dream of the barbaric practice of actually forcing the water into the nose and mouth.

"Apples and oranges."


Comments:

I finished reading Cass R. Sunstein and Reid Hastie's "Preliminary Draft" (4/8/08) of their article titled "Four Failures of Deliberating Groups" (available at SSRN) addressing Groupthink that might be helpful in understanding why so few spoke up. Speaking up can have many negative consequences. But so can not speaking: "And then they came after me." See Yoo later.
 

I wouldn't underestimate the effect that '24' has had on our collective sub-conscious. Its been said here and in other places, but I have a very hard time imagining these "principals" discussions taking place in 2000. There certainly was no rush to agressively interrogate (read:torture) foreign nationals in the wake of the 1993 WTC bombing. However, once what can only be described as "torture porn" became one of the most popular shows on TV, I think there was a general acceptance of torture as not being 'that bad' especially as performed by the uber-defender of America, Jack Bauer. The amount to which the "ticking time bomb" scenario, as popularized by 24, into our national debate on a whole range of national security issues is astounding to me. While there is no "solution" to this, I wish people would acknowledge that 24, is, in fact, A FICTIONAL TV SHOW. TORTURING IS NOT COOL, PATRIOTIC, OR MAKING US ANY SAFER. That such a show could have such a profound impact on serious debate over torture, wiretapping, etc. to me, is simply amazing.
 

Regarding the discussions in the White House: I don't support the use of these interrogation techniques. However, assuming that our government has decided to use such techniques, shouldn't we be happy that the authority to do so was not delegated to the patrolman walking the beat? Put another way, shouldn't we be pleased that the authority to make these decisions was retained by the people who are most directly accountable to the people and who (theoretically) have the best judgment and perspective?
 

There has been a lot of ambiguity in press accounts of our practice of waterboarding. Some descriptions describe "simulating" the experience of drowning, usually citing plastic covering the mouth and nostrils. Plastic would apparently prevent water from entering the lungs. Cloth apparently would not.

But the distinction Ashcroft sought to make between "forcing" and "pouring" seemed to concede that either way water ended up in the stomach and lungs. So in that case, we're drowning the victims. Only slowly.
 

"However, assuming that our government has decided to use such techniques, shouldn't we be happy that the authority to do so was not delegated to the patrolman walking the beat? Put another way, shouldn't we be pleased that the authority to make these decisions was retained by the people who are most directly accountable to the people and who (theoretically) have the best judgment and perspective?"

The problem is that accountability can come about only after disclosure (to "We, the People") of the decisions by those who in actuality (as opposed to theoretically) may not have the best judgment and perspective. Disclosure to date has been late and sparse.
 

I also appreciate how our wise elder leaders made it their #1 priority to enact legislation immunizing themselves from legal liability for their wise decisions, under cover of a "Military Commissions Act."

Way to take responsibility, all right.

--Ashcroft: all the more disgusting for the occasional glimmer of conscience. Remember, he was the Nazi who thought that maybe such discussions shouldn't be held right there in the Fuhrer's Chancellery.
 

Looks like we have yet another confirmation of what is involved in the CIA waterboarding technique, leaving no room (to the extent that there has been any for months now) for observers to mistakenly claim that the CIA uses the same techniques as the Spanish Inquisition, Japanese war criminals and our Army in the Philippines. Anyone making these comparisons like Amnesty in their latest commercial is intentionally lying.

Despite the snide "apples and oranges" crack, the difference between inflicting substantial physical injury and agonizing physical pain by forcing water into the lungs and stomach of a person then forcing it out again and the complete lack of physical injury and physical pain in the CIA technique designed to inflict panic is plain to any objective observer without a political ax to grind.

The deliberately false comparisons between the CIA waterboarding technique and the Spanish Inquisition, et al (not to mention Abu Ghraib and the like) begs the question of why opponents of the CIA technique have to stoop to lying in an attempt to make their case?

Is not four to five minutes of inflicting severe panic on the al Qaeda architect of 9/11 and two of his subordinate officers through waterboarding enough for you to make your case to the American people that the President is guilty of gross war crimes?

The resort to lying appears the answer that latter question.
 

Baghdad, 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? I'd even promise to "pour" the water on you instead of forcing it into your lungs through your ears.
 

Mock Execution - even with a Doctor and a Psychologist and other 'professionals' present - is still a War Crime.

Imvho, it doesn't matter if it's cloth or plastic - the Detainee is in a 'check-out' lane - convinced he is Being Killed with Much Malice.

In addition, contrary to claims of using a 'simulated drowning' technique, Kurnaz (sp) clearly stated that, when he was Waterboarded, he had "to drink the water into my lungs."

So, the 'technique' argument is a quibble along the lines of "Was he murdered painfully, but 'humanely' enough, before he was resuscitated?"
 

NOTHING TO SEE HERE, FOLKS ... MOVE ALONG.

Bart is once again pretending that waterboarding, i.e., asphyxiation with a damp rag, does not induce any *physical* pain or suffering.

We all know better; we have all been through this before with Bart. We know that the sensation of being unable to breathe is "physical" in any reasonable sense of the word, and is indeed "suffering."

Please do not argue this point with Bart and get this thread deleted by the admirable-but-testy Prof. Lederman.
 

It appears that shaming actually worked this time at refocusing the debate to the actual facts.

Hopefully, the Spanish Inquisition lie will not be repeated here again.
 

Baghdad, it appears that you're not capable of shame.
 

Why is this "old news"?

Did we really know before that the NSC "Principals Committee" -- including Rice, Powell, Ashcroift, and Tenet along with Rumsfeld and Cheny -- had approved specific torture techniques and then actually supervised their application in the case of several detainees?

Did we know that the President was aware of and approved these meetings and presumably their decisions?

No, we didn't.
 

Which right-wing think tank does Bart work for again?
 

A popular myth about lawyers is that they find "loopholes" in the law so their clients can get around legal restraints otherwise making a lot of "common sense." It seems that the larger the gap between what "common sense" says is moral and what some lawyer's "loophole" permits the client to do, the smaller the reputation for the "loophole" seeking lawyer. Of course, those of us familiar with the law use more precise terminology and recognize divergences between moral wrongs and legal wrongs.

In an earlier thread Arne Langsetmo wrote: "There is a difference between those offences that are malum prohibitum and those that are malum in se." Arne makes a key distinction mirroring the popular mythology. Torture finds itself in company with genocide and piracy in its near universal recognition as an inherently wrongful practice. Even President Bush claims his administration "does not torture" because he knows torture is one of the malum in se wrongs. Marty Lederman has pointed out the alarming and grotesque contrast between what some officials at highest levels of the Bush administration were willing to plan in the White House and what other administration officials recoiled against.

If FBI Director Robert Mueller, the military JAGs, and Deputy Attorney General James Comey all knew Bush's torture program was legally wrong, those other officials involved in the program must know they are in legal hot water.

When John Ashcroft makes a speech at Knox College claiming there were U.S. reservations to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) that permitted waterboarding, Ashcroft probably is signaling a mistake of law defense he hopes will demonstrate his lack of guilty knowledge to complicity in torture. No wonder John Ashcroft is irritated to be asked by a student whether the ABC News story is correct about his meetings with other members of the "Principals Committee" to discuss "enhanced interrogation." Because ABC News also reported that Ashcroft questioned whether it was such a good idea to be discussing "enhanced interrogation" in the White House. According to ABC, Ashcroft stated, "History will not judge this kindly." If true, that damning admission against penal interest destroys Ashcroft’s weak mistake of law defense.

We all know the mistake of law defense isn't going to work anyway and it's pretty galling that a U.S. Attorney General could even think to claim ignorance of the law. The law is clear, no matter how many pages of "loopholes" John Yoo corruptly wrote for his government client. The federal criminal statute defining torture states that "'torture' means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." 18 USC 2340(1).

If an interrogator straps a detainee to a board so his body and head cannot get out of the way of the water that cuts off the detainee's air, is that not "physical or mental pain or suffering" within the meaning of the statute? Isn't it "severe" when the clear implication to the detainee is that his interrogator threatens to do this procedure for as long and as many times as the interrogator desires? The detainee knows the interrogator is threatening death even if the interrogator has a doctor standing in the wings to prevent death.

Moreover, Article 2(2) of the CAT provides: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture."

What part of "whatsoever" did lawyers such as John Ashcroft, Alberto Gonzales, and John Yoo fail to understand?

Oh sure, there are some two-bit lawyers going around saying a U.S. president has plenary power to abrogate existing treaties. That kind of sweeping assertion is not applicable to human rights conventions covering such subjects as torture or genocide. Additionally, the CAT was ratified by the U.S. Senate on August 21, 1994 and implemented by the torture statutes found at 18 USC 2340 and 18 USC 2340A. It's federal law. There's no "loophole" for President Bush or anyone else. The Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 may have partially decriminalized some aspects of the War Crimes Act, but they never amended the federal torture statutes.

Anybody remember Baruch Korff, the buffoonish Massachusetts rabbi who went around the country during the later Watergate days pleading leniency for Richard Nixon? Korff mostly disappeared from the public eye after President Ford pardoned Nixon. His role was to influence the public to forestall criminal prosecution against Nixon and to raise criminal defense money in the event prosecution occurred anyway.

Today we seem to have some small-time attorneys and angry retired old men trying to replicate Korff's efforts. They seem to inhabit the blogosphere 24/7. Who are these guys with some much time on their hands anyway? Are they getting paid stipends from some Swiftboater PAC or from leftover money out of the Scooter Libby Defense Fund? Who cares? Their arguments will be shown ridiculous in a court of law.

And maybe that's the point to today's vociferous arguments: trying to bluff the public into believing no laws were broken – trying to rally public opinion against prosecuting the people who ordered and designed President Bush's torture program. Because, deep down, today's specious bluffers know that the torture architects are facing potential life sentences for torture conspiracy pursuant to 18 USC 2340A(c).
 

There has been a lot of ambiguity in press accounts of our practice of waterboarding. Some descriptions describe "simulating" the experience of drowning, usually citing plastic covering the mouth and nostrils. Plastic would apparently prevent water from entering the lungs. Cloth apparently would not.

Not so apparent.

Detailed accounts of the plastic wrap technique indicate that it is essentially a two step process. First, plastic wrap with a small hole in it is used to obstruct airflow into the lungs. After the torture subject is well on the way to unconsciousness and death from lack of oxygen, water is poured on the plastic wrap. The water trickles through the hole in the plastic and heads toward the lungs. At most a small amount of water enters the lungs, but the combination of oxygen deprivation and the sensation of water in the airway triggers the uncontrollable panic usually associated with drowning.

Using a soaked cloth accomplishes much the same thing. In neither case does a significant amount of water enter the lungs. In both cases it is the easily removed obstruction of the airway that is the actual danger, not the water itself. However, in both cases it is the water to which the oxygen deprived brain reacts most strongly.

Sorry for the unpleasant details, but there are differences between various torture techniques that use water, and whether the water itself is the actual cause of physical danger or injury is one of them. Whether that distinction makes any moral or legal difference is a separate issue, and just saying that they are different in no way makes the plastic wrap or cloth techniques thereby acceptable.
 

Hm. Question re: the Torture Act.

"Whoever outside the United States commits or attempts to commit torture" has violated the Act. This arguably does not include Gitmo, or possibly even facilities under U.S. control -- "possessions" of the U.S. needs to be interpreted.

Assuming the most favorable construction (for the torturers), that leaves the conspiracy offense:

"A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy."

Now, here's my question:

Does the conspiracy have to occur "outside the U.S.," or is there no geographical limit on it?

Could it occur in the OLC offices, or in the White House?
 

Lincoln said "whenever I hear someone defending slavery, I feel a powerful impulse to see it tried on him personally".

Perhaps the passionate defender of mere pouring, John Ashcroft, would oblige us with a demonstration of how not-torture it is.

Of course, that has nothing to do with law. The law says otherwise in no uncertain terms. I'm just taken by Lincoln's shoe-on-the-other-foot test.
 

anderson:

The conspiracy provision does not have a geographical limitation.

If these provisions otherwise apply, the defendants in the United States could hypothetically enter into a conspiracy for CIA to violate the torture statute provision in a covered area outside the United States.
 

jpk:

As for Lincoln's shoe on the other foot test, I imagine any of our soldiers al Qaeda captured and tortured to death by dragging, burning and dismembering would gladly substitute their cruel fate for the full range of the CIA's coercive techniques imposed on KSM.

Don't even go there.
 

As for Lincoln's shoe on the other foot test, I imagine any of our soldiers al Qaeda captured and tortured to death by dragging, burning and dismembering would gladly substitute their cruel fate for the full range of the CIA's coercive techniques imposed on KSM.

# posted by Bart DePalma : 12:34 PM


Baghdad, what does Al Qaeda have to do with this? He is talking about whether WE torture. Whether we torture as brutally as Al Qaeda is a meaningless distinction.
 

Anderson, the answer to your question comes from the torture statute itself and from the nature of conspiracy law. First, the torture statute gives a territorial limitation for the crimes of torture and attempted torture and does not give a similar territorial limitation for the offense of conspiracy to commit torture. Second, since conspiracy is a separate offense to the underlying illegality the co-conspirators intend, Congress would have given a territorial limitation to torture conspiracy if that is what it wanted.

At this point we do not know the location of the "black sites" where the CIA conducted its waterboarding procedures. Since the whole idea of creating "law free" zones was to strip the detainees of any rights, it's a pretty good guess that the waterboarding occurred outside of any commonwealths, territories, or possessions of the United States. Very likely torture occurred outside of the United States, within the meaning of the territorial limitations set forth at 18 USC 2340A(a).

It's also a pretty good guess that Attorney General Michael Mukasey didn't want to discuss whether waterboarding is "torture" because he knew enough facts to predict a bothersome outcry to prosecute U.S. government officials. If the public processed the notion that waterboarding (torture) was conducted by U.S. personnel somewhere on the planet, the next notion for the public to process is whether U.S. personnel could commit a U.S. crime while operating abroad. The answer, of course, is yes. Mukasey didn't want to open that door.

There's another good guess to be made about why President Bush and others connected to the Bush torture program deny torture occurred. Beyond screwing of Bush's legacy for "Compassionate Conservatism," knowledge of plans and programs to engage in torture forms the mens rea supporting a conspiracy prosecution.

In the unlikely event that some future special prosecutor decides the torture conspiracy provision found at 18 USC 2340A(c) DOES have a territorial limitation , such a prosecutor could still move forward under the general conspiracy statute found at 18 USC 371. This section provides: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."

Finally, one should not forget that waterboarding was the least intrusive procedure visited upon detainees. Other detainees were smothered, beaten to death and died of hypothermia. Somebody might want to pose the question, "What's so bad about waterboarding somebody for a few minutes?"

What's so bad is that the decision to "take the gloves off" evidently was carried out beyond the formal chain of command up to the Commander-in-Chief. The dead detainees are mute evidence to that. Oh, and how many of these dead detainees were convicted of an offense punishable by death? None.
 

The wonders of modern technology:

Despite the snide "apples and oranges" crack, the difference between inflicting substantial physical injury and agonizing physical pain by forcing water into the lungs and stomach of a person then forcing it out again and the complete lack of physical injury and physical pain in the CIA technique designed to inflict panic is plain to any objective observer without a political ax to grind.

That's the great thing about rubber hoses too: They leave no marks.

I await with bated breath "Bart"'s explication of how the CIA's version of waterboarding simply induces a sense of elation in the subjects so that they become all lib'rul and touchy-feely and then spill their guts out in the interest of furthering cosmic karma and World Peace.... Aren't there some scientific papers that "objectively" demonstrate this phenomenon, "Bart"?

Cheers,
 

Nick Jackson:

What's so bad is that the decision to "take the gloves off" evidently was carried out beyond the formal chain of command up to the Commander-in-Chief.

Interesting question: Why would they term this "tak[ing] off the gloves"? Mens rea, anyone?

Cheers,
 

Is not four to five minutes of inflicting severe panic on the al Qaeda architect of 9/11 and two of his subordinate officers through waterboarding enough for you to make your case to the American people that the President is guilty of gross war crimes?

Bart, you just conceded that our version of waterboarding is torture. Intentionally "inflicting severe panic" is clearly within the definition of torture in the US Torture Act, as well as the Torture Convention. And the law is clear that there are no exceptions for torture even in exigent circumstances (even if we grant your supposition that there were such circumstances).

So the answer is yes, as a matter of black letter law, this is a war crime. Proof of intent to "inflictsevere panic" would be enough to get a plaintiff summary judgment in a Torture Victim Protection Act or 28 USC 1350 case.
 

So I take it there's no rule that the geographical restriction on the underlying offense is carried over to the conspiracy to commit said offense.

That, I guess, is what I was asking (not knowing criminal law).

Thanks!
 

Intentionally "inflicting severe panic" is clearly within the definition of torture in the US Torture Act, as well as the Torture Convention.

I have to wonder, Dilan, if it's black-letter law, do you have any citations?
 

dilan:

The torture statue prohibits intentional infliction of severe and prolonged mental pain.

Three rather significant problems with applying this definition to the CIA waterboarding technique:

1) Unlike physical pain, no one can define mental pain. Does mental pain = panic? If I told the al Qaeda that Muhammad was gay, is that infliction of mental pain? Based on what legal or medical authority?

2) Even if you can define "mental pain," how do you measure when that mental pain becomes "severe." There is no medical authority for objectively measuring "mental pain."

3) Finally, is a moment or two of panic considered to be "prolonged?" Usually, folks break under waterboarding in less than 30 seconds.

Once again, the Torture statute is almost certainly void for vagueness under the Due Process Clause.
 

1) Unlike physical pain, no one can define mental pain.

Baghdad, if I got the chance to waterboard you into admitting a key role in the 9/11 attack, I'm quite certain you would be able to define "mental pain".
 

3) Finally, is a moment or two of panic considered to be "prolonged?" Usually, folks break under waterboarding in less than 30 seconds.

I don't know if it's "prolonged", but it certainly seems to be "long enough".

I know that "Bart"'s a "know-nothing" here, and insists that no one can figure out what "severe pain" is (and he's a sceptic as to even the existence of "mental pain"). His incomprehension, of course, doesn't mean that anyone else is so afflicted. I note that he dropped the 'objective' "straw man" that he has trotted out in the past, though, which is a good thing, since the treaty and statute don't require that the "severe mental pain" or "severe physical pain" be "objective" (or even be determined to be "objectively so").

Furthermore, "Bart" makes the mistake for conflating the duration of the procedure and the duration of the "mental pain". That the procedure is relatively short doesn't mean that the suffering it induces is similarly short ... unless it's Republicans you're waterboarding, seeing as they have been objectively shown to have the LTM of a gnat or a radish at best.

That people break "in less than 30 seconds" when they can withstand physical pain for much longer hardly argues for the inconsequential nature of the procedure. This is a point that "Bart" assiduously refuses to address. I'd think that he should provide an alternative explanation for the 'efficacy' of waterboarding if he wants to continue to insist that any "pain" is in fact de minimis

Cheers,
 

"I await with bated breath.." --Arne

Arne, you are a wag to put that into this discussion!

We know that waterboarding induces severe mental suffering and has induced longterm ptsd on the part of its sufferers.
It is far more than four or five minutes of discomfort on a saturday afternoon.

Refer to the statement of Dr. Allen S Keller of Bellevue Hospital and NYU School of Medicine to the Senate Select Committee on Intelligence hearing on US interrogation policy and Executive Order 13440:

at: intelligence.senate.gov/070925/akeller.pdf.

a relevant quote from that testimony:

"According to one recent study published in the medical literature, the significance of harm caused by non-physical psychological abuse is virtually identical to the significance of the harm caused by physical abuse."

on waterboarding:

"Long term effects include panic attacks, depression and PTSD"

and so forth. An interesting report to read in the context of the recurring and ongoing efforts to domesticate and euphemize torture.
 

Unlike physical pain, no one can define mental pain.

Okay, now that's just silly. It's well established that the legislature will not be presumed to have used meaningless words; hence, mental pain is indeed definable.

Leaving aside, of course, that waterboarding, forced standing, hypothermia, and extended sleep deprivation are indeed "severe physical pain or suffering."
 

Furthermore, "Bart" makes the mistake for conflating the duration of the procedure and the duration of the "mental pain". That the procedure is relatively short doesn't mean that the suffering it induces is similarly short

This is the key point. Bart wants to say that because waterboarding only lasts a minute, it only causes a minute of mental pain. An analogue to that would be that if you witnessed someone sodomizing your mother for a minute, that wouldn't cause more than a minute of mental pain. It is obviously untrue.

In any event, here's some caselaw rejecting Bart's position:

"An unlawful or extrajudicial threat of imminent death comes within the definition of torture if it is specifically intended to bring about prolonged mental pain or suffering. 8 C.F.R. §§ 208.18(a)(3), (a)(4)(iii), (a)(5). This intent requirement is satisfied if prolonged mental pain or suffering either is purposefully inflicted or is the foreseeable consequence of a deliberate act. Zubeda v. Ashcroft, 333 F.3d 463, 473 (3d Cir.2003)." Habtemicael v. Ashcroft, 370 F.3d 774 (8th Cir. 2004).

"Defendant argues that the Torture Act, 18 U.S.C. §§ 2340-2340A, does not give fair warning of what is outlawed, is void for vagueness, and therefore violates the Due Process Clause of the Fifth Amendment. Specifically, Defendant maintains that the definitions of “torture” and “severe mental pain or suffering,” and the various terms used in those definitions, such as “acting under the color of law,” and “incidental to lawful sanction,” included in the Torture Act, 18 U.S.C. § 2340, do “not provide the kind of notice that will allow ordinary people to understand what conduct is prohibited.”"

"The Torture Statute, enacted to fulfill the United States' treaty obligations with most of the countries of the world, certainly put the Defendant, a person born in the United States, on notice of conduct prohibited not only in this country, but in much of the civilized world."

U.S. v. Emmanuel, 2007 WL 2002452 (S.D. Fla. July 5).


And here's some other cases that will give you an idea of what constitutes severe mental suffering:

"While in detention, she was subjected to torture, such as being denied food and water, being required to remain standing and handcuffed against the backs of other prisoners for prolonged periods of time, being denied sleep, being denied use of toilet facilities, and being forced to watch the torture of others, including another Falun Gong practitioner who was placed on a rusty torture device called Di Lao. Xia Compl. ¶¶ 9, 25." Doe v. Qi, 349 F.Supp.2d 1258 (N.D. Cal. 2004).

"Plaintiffs allege they were (a) in the custody or physical control of the security force; (b) suffered severe, prolonged mental and physical pain or suffering; by being (c) threatened with imminent death; for the purposes of (d) punishing Plaintiffs for their labor activities. The complaint alleges that Plaintiffs Hernandez, G. Martinez, M. Martinez, and Romero all were told they would be killed that night.FN9 Plaintiff Aldana and M. Martinez were filmed with a video camera and told they “would be giving their last messages.” (Compl. ¶ 48). The complaint does not mention specific threats against Plaintiff Rodriguez, nor does it say that Plaintiff Evans was told he would be killed that night.FN10 But, another paragraph discusses a collective threat: taking pictures of the seven Plaintiffs, “stating that [a member of the security force] wanted a clear photo of the faces before he killed them all.” (Compl. ¶ 45). These allegations describe imminent death threats: (1) the security force was heavily armed; (2) Plaintiffs were unarmed and restrained; and (3) for many hours the security force made specific threats that Plaintiffs (for their past acts) would be killed not sometime in the future, but that very night."

"All things considered, the acts alleged in the *1253 complaint could constitute torture-based on intentionally inflicted emotionally pain and suffering-under the Alien Tort Act and Torture Victim Protection Act."

Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005).

"Given Mr. Sackie's undisputed and uncontroverted testimony that he was threatened with imminent death on numerous occasions, frequently given mind altering substances and suffered cuts to his back and arms, we must find that he has met his burden of proving that he was tortured in his native country."

Sackie v. Ashcroft, 270 F.Supp.2d 596 (E.D.Pa. 2003).




Bart DePalma, you see, is a man who knows something about military commissions law (even though I don't agree with him), and his first postings on Balkanization were within his expertise. When he talks about torture, though, he has never researched or practiced in this area of the law, and he knows very little. He doesn't realize there is extensive US caselaw interpreting the definition of torture, and that yes, a mock execution (which is what waterboarding) is a pretty standard form of torture and is judicially recognized as such.

At some point, you would think Bart would have the dignity to quit while he is behind.
 

See the Emmanuel case cited by Dilan, which says it's the first case of a criminal prosecution under the Torture Act. The accused is said to have "repeatedly shocked the victim's genitalia and other body parts," among other acts.

According to the Yoo memos, that does not appear to be torture.
 

Yeah Bart, when you get your 15 minutes of fame being a pro bono member of the defense team during the Bush torture conspiracy trial you'll probably win the motion to make the Special Prosecutor prove torture had prolonged effects on Bush's alleged torture victims. So the Special Prosecutor will have to drag out some doctors specializing in treating torture victims at various clinics in Europe and the United States. These expert witnesses will testify about the lasting effects exhibited by patients who were tortured in Cambodia and the Former Yugoslavia. They will have CVs detailing articles they published in the subject long before September 11, 2001. More recent articles develop the subject, too. See Khamsi, Roxanne. (2007, March 5) "Psychological torture 'as bad as physical torture'" NewScientist.com news service or Huiras, Robin. (2008, February 25) "Waterboarding takes physical and psychological toll on victims" Nurse.com.

Naturally John Yoo couldn't have known about articles written in 2007 or 2008 when he looking for "loopholes" in the torture statutes way back in 2002 and 2003. That's why the Special Prosecutor will bring in experts who published prior to September 11. Of course, the earlier literature about the prolonged effects of torture is exactly the kind of "other considerations such as moral, economic, social and political factors" mentioned in Rule 2.1 of the Pennsylvania Rules of Professional Conduct. You know – the factors Yoo failed to warn his government client about in his August 1, 2002 and March 14, 2003 torture memos.

Probably the defendants in the torture conspiracy trial will try to argue that the only reason the torture victims are suffering prolonged physical or psychological effects today is that these individuals were living under degraded, third-world conditions before their capture by U.S. forces. But, as they teach in law school, "you take your plaintiffs [victims] as you find them."
 

Sorry for the serial commenting, but the Emmanuel case is a great read.

Anyone surprised that the accused submitted, as part of his defense, the Bybee memo?

Lovely.
 

Dilan:

There you go citing caselaw. I'm afraid you just don't understand. When the president does it, that means it's legal. And that is the sum of "Bart"'s 'argument' (and Yoo's), and in fact all that needs be said. His mission here is to defend the preznit in any way that he can. And he will not slack from that mission, not matter the odds nor the gravity of the situation.

Cheers,
 

This comment has been removed by the author.
 

"Bart", of course, will point out that all of Dilan's cites are for opinions handed down after the Yoo memo was written, and how could Yoo have guessed? I mean, "who could have predicted?...."

Perhaps the reason that all these cases are cropping up recently is that before the Dubya maladministration "took the gloves off", pretty much every sane person would have been horrified at the thought of the U.S. engaging in such conduct, and certainly wouldn't have done it themselves.....

Cheers,
 

Arne:

The problem is, we weren't discussing Yoo's memos. (Though, for the record, there was plenty of pre-2002 authority on what the definition of torture meant. The immigration regulations interpreting the Convention Against Torture had been around a little while, plus there were Alien Tort Statute cases and, of course, the international authorities interpreting the Convention which Bart doesn't want Yoo to cite even though they are relied on by courts. There is the legislative history of the Torture Act and the CAT as well as the DOJ regulations relating to withholding of deportation under the CAT (which all include specifically that mock executions are a form of torture). Finally, there are state torture statutes and plenty of caselaw interpreting them.)

We were discussing whether the US version of waterboarding wasn't torture because it inflicted mental suffering, according to Bart, only for a minute. THAT claim, if it were ever made, would be evaluated using all available caselaw, including pre- and post-2002 cases. And it's entirely clear that Bart's claims regarding the definition of toture have been rejected by every court that has adjudicated them.
 

Let's reminisce. A particular person, who shall remain nameless (Bart), who posts on this blog has been consistent in several regards, one of those being hypocrisy, one of those being lying, and one of those denying that there is an objective definition of pain. It seems that unnamed person -- Bart -- has had a change of ideology on the point, however obviously convenient in keeping with one of his usual consistencies:

"Despite the snide "apples and oranges" crack, the difference between inflicting substantial physical injury and agonizing physical pain by forcing water into the lungs and stomach of a person then forcing it out again and the complete lack of physical injury and physical pain in the CIA technique designed to inflict panic is plain to any objective observer without a political ax to grind."

Mmm, yes. "[W]ithout a political ax [sic] to grind." I think we can rule out one particular person as not having a political "ax" to grind, and who shall again remain unnamed (Bart).
 

Which right-wing think tank does Bart work for again?

# posted by Kenneth Fair

There's no such thing as a "right-wing think tank".
 

"Anybody remember Baruch Korff, the buffoonish Massachusetts rabbi who went around the country during the later Watergate days pleading leniency for Richard Nixon? Korff mostly disappeared from the public eye after President Ford pardoned Nixon. His role was to influence the public to forestall criminal prosecution against Nixon and to raise criminal defense money in the event prosecution occurred anyway."

Oh, yeah, that guy. His buffoonery is why there are approximately 29.2 Republicans in the entire state of MA.

So few (and all of them buffoons), in fact, that even though they are the minority in the legislature, they are constantly running from one seat to another therein in effort to make it appear that they have more numbers than they in fact do. And that, therefore, they matter, and help conduct the business of the state.

We elect them because, as one of the two oldest British colonies on this continent, we have the accumulated wisdom to recognize the necessity of levity. We elect them in order to transform the sober, even somber, substance and practice of politics into another venue of entertainment.
 

Bart imagines --

". . . . I imagine any of our soldiers al Qaeda captured and tortured to death by dragging, burning and dismembering would gladly substitute their cruel fate for the full range of the CIA's coercive techniques imposed on KSM.

"Don't even go there.

"# posted by Bart DePalma"

But doesn't ask those of "our soldiers" he is cavalier in volunteering for such a test.

Whenever I hear Bart defend torture, I wonder why he always volunteers any but himself to be subjected to it.

Get it straight, Bart: there's much torture and maiming and killing going on in Iraq. And not all of it is being committed by the statistically insignificant demographic "al Qaeda".

Meanwhile, back in the US, we are confronted by a significant number of elitist "rotten apples" at the top of the barrel calling a few at the bottom of the barrel who did as they were told by that significant number "rotten apples".
 

Dilan --

"Bart DePalma, you see, is a man who knows something about [the]military . . . .

"At some point, you would think Bart would have the dignity to quit while he is behind.

"# posted by Dilan"

Except that that is the Republican military orthodoxy -- taking up the rear (cf. Dick "5 Deferments" Cheney and the ever-AWOL Bush).

Or being certain that the military is between oneself and the "enemy" before bravely declaring, "Bring 'em on!"
 

When asked for the evidence that a (particular) detainee is an unlawful combatant or a member of AQ or for that matter guilty of anything at all, Bart's answer is, "do you watch the news?"

On the other hand, when Yoo's memo turns the US Constitution on its head by annihilating Congress's power to make the law (all in the service of degrading America, degrading our armed forces and degrading our enemies) then Bart's objection is, "where is your evidence?"

I think you synthesize these two positions by saying Bart is incompetent to distinguish his own desires from the real world. What he wants is assumed and requires no proof. What he detests no amount of evidence, no matter how compelling, will move him to accept.
 

The Army's Brigadier General Patrick Finnegan, dean of the U.S. Military Academy at West Point, told Fox's "24" creative team that "24" is popular with his students, and that they ask "If torture is wrong, what about '24'"?

http://www.opednews.com/articles/genera_sherwood_070224_fox_tv_series__2224_22_e.htm

Alistair Hodgett of Amnesty International credits 24 and A&E's MI-5, which follows the British security service, with realistic depictions that provide "a clearer idea of what torture involves. ... They do more to educate than desensitize."

http://www.usatoday.com/life/television/news/2005-03-13-24-torture_x.htm

http://www.csmonitor.com/2007/0212/p99s01-duts.html

Looks like Amnesty International had it wrong.
 

Co-creator and executive producer Joel Surnow was quoted in the New Yorker:

“People in the Administration love the series, too,” he said. “It’s a patriotic show. They should love it.”

http://www.newyorker.com/fact/content/articles/070219fa_fact_mayer
 

I especially appreciate, and even enjoy, your expertise, and your detailed evaluation of the DOJ turf, Prof. Lederman. However --

"Of course, part of the explanation no doubt was the sheer panic and terror these officials felt in the wake of September 11th, with the prospect of further devastating attacks appearing to be all-too-feasible, and possibly imminent. . . ."

I don't buy that for a minute -- or even less than that. They got into office having long planned to invade Iraq. And they were looking for any pretext to do that. Torture was just another detail in their larger scheme. Or did they by "accident" choose to torture the 89-98 per cent at Abu Ghraib who the Red Cross, and anyone who was paying attention, knew hadn't been adjudicated guilty of anything; instead, had been rounded up in sweeps based upon being in the "wrong" -- being Iraqi in Iraq -- place at the wrong time?

Did they essentially hang a sign on Abu Ghraib reading, "Under new management," and pick up where Saddam allegedly left off by accident? As result of "panic"? Or did they do it for "practice"?

At best, I would suggest that they adopted torture as a means to no justifiable end -- even were it legal -- simply because they could. Before and after all they began with the belief in the "Unitary Executive" lie, and they believe/d that "reality" is only a matter of opinion, and that they were in the position to change that opinion.

And look at Bush's history: all his life he's been a screw up. Everything he touched turned to sh*t. And yet his daddy and friends always cleaned up after him -- which he probably didn't even notice as he was walking away from whatever the latest screwup. He's always got away with everything. Why would he doubt his experience in that regard? Why would he expect his "luck" to change?
 

dwightvw --

Co-creator and executive producer Joel Surnow was quoted in the New Yorker:

“People in the Administration love the series, too,” he said. “It’s a patriotic show. They should love it.”

So torture -- war crimes -- is patriotic? Rejecting the rule of law is patriotic? Emulating Saddam Hussein is patriotic?

There sure are some twisted people in show-biz.
 

Rejecting the rule of law is patriotic?

Sure, if your proponent/protagonist is charismatic enough. Who needs to wait for justice if you have justification?
 

from the CONSIDERATION OF REPORTS SUBMITTED BY STATE PARTIES UNDER ARTICLE 19 OF THE CONVENTION, Initial reports of States parties due in 1995, Addendum UNITED STATES OF AMERICA [15 October 1999]

UNCAT CAT/C/28/Add.5

Page 4 and 5, this is our State Department talking: [boldface is mine]

"Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the Government, federal, state, or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification for torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer of public authority, and the protective mechanisms of an independent judiciary are not subject to suspension."

page 13:

"In 1994 Congress enacted a new federal law to implement the requirements of the Convention Against Torture relating to acts of torture committed outside United States territory. This law....extends United States criminal jurisdiction over any act of (or attempt to commit)torture outside the United States by a United States national..."
 

HD kaliteli porno izle ve boşal.
Bayan porno izleme sitesi.
Bedava ve ücretsiz porno izle size gelsin.
Liseli kızların Bedava Porno ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var
2013 Beyaz Eşya modeller
Sizlere Güvenlik Sistemleri ayarliyoruz
Arayin Hırdavat bulun
Samsung Nokia İphone Cep telefonu alin.
Super Led Tv keyfi

Amatör Porno - Amcik Porno - Anal Porno - Asyali Porno - Bakire Porno - Erotik Porno - Esmer Porno - Fantazi Porno - Gay Porno - Götten Porno - Grup Porno - Hard Porno - HD Porno - Hemsire Porno - Latin Porno - Lezbiyen Porno - Liseli Porno - Olgun Porno - Oral Porno - Rokettube - Sarisin Porno - Sert Porno - Tecavüz Porno - Travesti Porno - Türbanli Porno - Türk Porno - Ünlü Porno - Yasli Porno - Zenci Porno - Kari Koca Porno - Hayvanli Porno

 

Post a Comment

Older Posts
Newer Posts
Home