Balkinization: No torture, No exceptions

Comments:

Ooh! The Mayer is a must-have. Thanks for the tip.

# posted by

Anderson : 6:09 PM

Perhaps I missed it, but does Mr. Horton's campaign define what he thinks is torture? Its difficult to ban what one cannot define.

# posted by

Bart DePalma : 7:50 PM

"Bart" DePalma:

Perhaps I missed it, but does Mr. Horton's campaign define what he thinks is torture? Its difficult to ban what one cannot define.

Sapient people don't have problems defining "torture". They have done so, and will continue to do so (efforts to "redefine" from Yoo, et al. notwithstanding). You'll find that out should you decide to ply your trade in Europe, ferinstances.

I'd note that even Yoo and company didn't make the claim that there was any "void for vagueness" infirmity; they had to choose a different type of disingenuity to attempt to avoid legal sanction.

That you personally are having such difficulties is not really interesting ... because it says more about you than it says of the law. But we're not here to discuss your infirmities, no matter how much and how often you'd like to introduce that to the discussion.

Cheers,

# posted by

Arne Langsetmo : 8:13 PM

arne:

I gave you the opportunity to offer an objective definition for "torture" and you were unable to do so.

Step aside. The ball is now in Mr. Horton's court.

# posted by

Bart DePalma : 8:20 PM

"Bart" DePalma:

Perhaps I missed it, but does Mr. Horton's campaign define what he thinks is torture?

Yes, you missed it. Blue clickies are your friend. They're in the post. Use them.

Cheers,

# posted by

Arne Langsetmo : 8:33 PM

"Bart" DePalma:

I gave you the opportunity to offer an objective definition for "torture" and you were unable to do so.

Moving the goalposts again, eh? Why do you insist on an "objective" definition of torture? No other crime requires an "objective" definition, yet millions of people are prosecuted for such crimes every year.

Why, even the favourite crime of your clients doesn't require such. A 0.08 is presumptive evidence of the crime, but as you well know, most jurisdictions allow for an intoxication conviction on other evidence.

BTW, I've pointed this out to you previously, but you ignored it ... just as you ignore any substantive rebuttals of your nonsense.

Cheers,

# posted by

Arne Langsetmo : 8:38 PM

"you really have no imagination bart..."

Could it be that he is in our imagination, that we are blogging under the influence?

# posted by

Shag from Brookline : 9:54 PM

"Whatever I can get away with."

Thank you, Bart, for sharing your ethics with us. Where would civilization be without your thoughtful contributions?

(Maybe better not answer that...)

# posted by

mattski : 9:56 PM

Garth:

1) You have proven my point that there is no objective definition for "torture," there are only lists.

2) If solitary confinement is "torture," then every army around the world routinely "tortures" POWs.

3) Finally, it is very un PCin these precincts to call sodomy "torture."

# posted by

Bart DePalma : 10:30 PM

arne:

Every crime under US law must be objectively defined or otherwise it is void for vagueness under the due process clause.

The DUI statute is a model of objectivity, with every element precisely defined. The blood alcohol level is perhaps the most precisely defined of all those elements.

You confuse indirect evidence and the ability to rebut evidence with subjectivity.

You have had your chance to offer an objective definition of "torture." Step aside and allow Mr. Horton an opportunity.

# posted by

Bart DePalma : 10:43 PM

garth:

Define physical or mental violence.

You have replaced one vague term with another.

Depending upon your sensitivities, physical violence could be anything from an unwelcome touch moving you to your cell to being bull whipped.

Depending upon your sensitivities, mental violence can range from calling someone names to dismembering a family member before their eyes.

Interestingly, the term physical or mental violence may not even cover all the items which you claimed were torture above.

# posted by

Bart DePalma : 10:48 PM

Every crime under US law must be objectively defined or otherwise it is void for vagueness under the due process clause.

This is only true in a Clintonian sense.

In fact:

1. Crimes that are malum in se (i.e., obviously and traditionally prohibited) require no precise definition. Sodomy statutes, for instance, traditionally simply prohibited the "crime against nature". It was assumed that citizens would know what that meant.

2. Even where applied, the void-for-vagueness test is very deferential (outside of First Amendment contexts). It simply requires that the statute put a reasonable person on notice. Complete precision is not required, and courts and juries are permitted to interpret to interpret the meaning of broad statutory language. The US Torture statute has already been held by at least one court to satisfy the Fifth Amendment due process test for vagueness, and no court has ever struck it down.

# posted by

Dilan : 11:04 PM

Bart: You will have to supply a definition of "objective" for your question(s) to be answered.

# posted by

Eric : 12:17 AM

The FBI's counter-terrorist agents, who have more experience in this area than any of us, seem to have been pretty concerned that what they were seeing at Guantanamo was torture. Why do you think they called their documentation of abusive interrogations a "war crimes" file?

# posted by

nvs : 12:23 AM

"Bart" DePalma:

3) Finally, it is very un PCin these precincts to call sodomy "torture."

Maybe out in Ted Haggard country it's OK, eh?

But ask Abner Louima whether forcible sodomy is torture. He'll enlighten you; he needed surgery to sew him up afterwards.

Cheers,

# posted by

Arne Langsetmo : 12:26 AM

"Bart" DePalma:

Every crime under US law must be objectively defined or otherwise it is void for vagueness under the due process clause.

Bullsh*t. Utter bullsh*t. What's the "objective" definition of ... just to make it easy ... rape? How about first degree murder? Misprision of a felony? Perjury? Grand larceny?

Out with it.

Cheers,

# posted by

Arne Langsetmo : 12:30 AM

"Bart" DePalma:

The DUI statute is a model of objectivity, with every element precisely defined. The blood alcohol level is perhaps the most precisely defined of all those elements.

The reason I brought that up is that it would be possible to insist that the only crime of "DUI" would be driving with a BAC > 0.08, some thing that is reasonably testable, repeatable, and generally not subject to much dispute (although the "driving" element may be a litte hazier;; for instance, is driving a lawn-mower on the streets such, if lawn-mower is not specifically mentioned or ruled out by the statutes). It is possible to have that "objective" standard of intoxication, despite the fact that different people are differently impaired at that "objective" standard threshld; maybe a bit unfair to some, but them's the breaks. But in fact, many jurisdictions make it a crime to drive "intoxicated", and the 0.08 BAC standard is just presumptive intoxication. You can be arrested and convicted of such on the basis of behavioural observation, and other less than fully objective criteria, even in the absence of a BAC determination, and the jury (or judge) gets to decide whether the evidence is enough to show that the person was intoxicated (or "impaired", as some laws put it).

This should be no surprise to you, "Bart".

Even this one crime that is amenable to a quite precise "objective definition" is quite often not defined that way. Yet drunks continue to get tossed in the tank....

Cheers,

# posted by

Arne Langsetmo : 12:41 AM

"Bart":

Step aside and allow Mr. Horton an opportunity.

O4Q, "Bart". Scott is not being blocked from responding if he wants. Why he should want to argue with such a dishonest and disingenuous disputant as you is beyond me, though. Your attempt to "reframe" the discussion in advance by introducing this mythical "objective" standard required of all criminal law certainly can't help.

I'd note that if you think that the proper standard for a criminal law is that it be "objectively" defined, you ought to be able to find some case that shows that in fact this is the case. Have at it, my man.

In fact, the relevant standard is not the relative objectivity versus subjectivity, but rather whether it is void for vagueness, so that the prospective criminal cannot fairly know from the law whether any particular actions he might take are criminal or not.

I'd also note that some crimes are crimes whether or not the person knew the acts were illegal.

Cheers,

# posted by

Arne Langsetmo : 12:48 AM

sorry mr. depalma, but the ball is in your court, not ours. as you well know, there are statutes and international conventions defining torture. as an attorney, you also know that the burden of proof is on he who is attempting to prove that the long accepted statutes, treaties, conventions, etc. are either void for vagueness and/or unconstitutional either on their face or in practice. the burden is not on us who accept the laws as written, but upon you to show that they are, in fact, inapplicable.

the foregoing considered, instead of hiding behind your statements that we have not properly defined legal terms that were defined long ago, the burden is on you to show why the terms are inapplicable.

... and please don't just say you defined this a long time ago. assume, which is not very far off the mark, that i missed it and am not too swift in any event, and need to be walked step by step through your proof again.

# posted by

phg : 7:28 AM

dilan said...

BD: Every crime under US law must be objectively defined or otherwise it is void for vagueness under the due process clause.

1. Crimes that are malum in se (i.e., obviously and traditionally prohibited) require no precise definition. Sodomy statutes, for instance, traditionally simply prohibited the "crime against nature". It was assumed that citizens would know what that meant.

Dilan, there has been a great deal of reform in criminal law since the days of common law crimes. For example, I am defending a case where my client is accused of what used to be called lewd and lascivious behavior by simply being seen naked in his house from outside of his house. Given that folks have an express constitutional right to privacy in their homes, the old common law term lewd and lascivious is not considered to be precise enough and a definition of public nudity is now required to pass constitutional muster.

One of the issues in my case will be that the jury instruction on public nudity written into another CO statute is not provided for in the statute under which my client is charged. I will be filing a motion demanding the instruction or a finding that the charged statute is unconstitutionally vague.

The US Torture statute has already been held by at least one court to satisfy the Fifth Amendment due process test for vagueness, and no court has ever struck it down.

No criminal prosecution has ever been brought under the statute. The prior decision was made under much more deferential civil rules.

# posted by

Bart DePalma : 8:38 AM

eric said...

Bart: You will have to supply a definition of "objective" for your question(s) to be answered.

A definition which will provide the defendant and the jury with the same reasonable notice of what is prohibited.

The torture statute fails this standard badly as demonstrated by the fact the everyone here has a different idea as to what constitutes torture.

# posted by

Bart DePalma : 8:41 AM

nvs said...

The FBI's counter-terrorist agents, who have more experience in this area than any of us, seem to have been pretty concerned that what they were seeing at Guantanamo was torture. Why do you think they called their documentation of abusive interrogations a "war crimes" file?

Actually, the FBI were sure that what they observed in Gitmo and other locations exceeded their precisely defined guidelines for the interrogation of civilian criminal suspects, which are not the same as a definition of torture.

For what it is worth, though, I suspect that Mr. Horton like you thinks that torture consists of anything that exceeds the law for the interrogation of civilian criminal suspects.

# posted by

Bart DePalma : 8:45 AM

Bart DePalma wrote...

"Actually, the FBI were sure that what they observed in Gitmo and other locations exceeded their precisely defined guidelines for the interrogation of civilian criminal suspects, which are not the same as a definition of torture."

Nope, that's not true. The FBI agents who objected were concerned about tactics they thought violated the Geneva Conventions, which govern the treatment of all detainees, including those not accorded POW privileges. The Supreme Court has held that the Conventions apply to captured al-Qaeda prisoners. The Conventions are implemented through the War Crimes Act. One of the "grave breaches" of Geneva rising to the level of a war crime is "torture and inhumane treatment." That law is what these FBI agents, many with years of experience in terrorist interrogations, thought was being violated.

The report also details FBI concerns that certain interrogation tactics, including rendition, would violate the Convention Against Torture (which is quite specific about sending detainees to countries where they are likely to be tortured). The Convention covers all detainees, not only "civilians."

# posted by

nvs : 9:28 AM

phg:

... and please don't just say you defined this a long time ago. assume, which is not very far off the mark, that i missed it and am not too swift in any event, and need to be walked step by step through your proof again.

Oh, "Bart" proved it. He is one of the few mortals gifted with the talent for "proof by assertion".

Cheers,

# posted by

Arne Langsetmo : 1:35 PM

Bart:

Malum in se crimes are generally not struck down for vagueness, your case not withstanding.

"When a statute criminalizes conduct that is wrong in itself, the statute becomes less susceptible to a challenge of being void for vagueness because the evil that is being remedied is commonly understood."

State v. Bratina (Mo. Supreme Court 2002).

"It takes no dictionary reference to understand what the words ‘nudity’, ‘sex’, ‘excretion’, ‘sadism’ or ‘masochism’ mean. The last three terms, which are descriptive of certain kinds of conduct whether portrayed live, printed or photographically, can be considered Malum in se in terms of Commercial exploitation. It is ludicrous and preposterous to suppose that a person dealing in such material would not understand the prohibitions here."

People v. Heller (N.Y. Court of Appeals 1973).

As for the Torture Act prosecution, you are simply wrong. US v. Emmanuel (S.D. Fla. 2007) involved a criminal indictment under the Torture Act. Indeed, the first line of the case reads "THIS CAUSE is before the Court on Defendant, Charles Emmanuel's Motion to Dismiss the Indictment Based on the Unconstitutionality of 18 U.S.C. § 2340A, Both on Its Face and As Applied to the Allegations of the Indictment [D.E. 38], filed on March 2, 2007.".

And the Court upheld the Torture Act against the precise vagueness arguments you make over and over again here.

"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."

Sorry, Bart, you are just dead wrong.

# posted by

Dilan : 1:43 PM

"Bart" DePalma:

[eric, to "Bart"]: You will have to supply a definition of "objective" for your question(s) to be answered.

A definition which will provide the defendant and the jury with the same reasonable notice of what is prohibited.

Laws are "void for vagueness" if the archetypical "resonable person" would not be able to determine if his actions would be illegal under the law (but some crimes, typically malum in se, are crimes regardless of the knowledge of the defendant as to illegalty). Torture, of course, is hardly a grey area WRT the inherent evil. Yes, the jury and the defendant must be on the same page, but that's taken care of by the "reasonable person" construct (and jury instructions).

The torture statute fails this standard badly as demonstrated by the fact the everyone here has a different idea as to what constitutes torture.

The defendant's and their lawyer's disagreement -- with the general consensus of society and all its "reasonable [men]" -- doesn't constitute "controversy".

I think that "Bart" finds the same level of "controversy" WRT the definition of torture as he finds support for Dubya's foreign policies and for discrimination against gays. Which is to say, he and his Colorado Springs nutjob neighbours and the now-23%! "dead-enders"....

Cheers,

# posted by

Arne Langsetmo : 1:48 PM

"Bart" DePalma:

Given that folks have an express constitutional right to privacy in their homes, the old common law term lewd and lascivious is not considered to be precise enough and a definition of public nudity is now required to pass constitutional muster.

One of the issues in my case will be that the jury instruction on public nudity written into another CO statute is not provided for in the statute under which my client is charged. I will be filing a motion demanding the instruction or a finding that the charged statute is unconstitutionally vague.

You may get your jury instruction. But they aren't going to strike down the "lewd and lascivious" law. Bet you $100 to your $1 on that.

What that has do with the price of tea in Sri Lanka, I don't know.

Cheers,

# posted by

Arne Langsetmo : 1:52 PM

dilan said...

Bart: Malum in se crimes are generally not struck down for vagueness, your case not withstanding.

"When a statute criminalizes conduct that is wrong in itself, the statute becomes less susceptible to a challenge of being void for vagueness because the evil that is being remedied is commonly understood."

State v. Bratina (Mo. Supreme Court 2002).

State v. Bratina, 73 S.W.3d 625 (Mo. 2002), simply held that the terms ""proper notice" and "proper law enforcement officials" have plain and ordinary meanings and are quite understandable by a person of ordinary intelligence."

Torture does not.

"It takes no dictionary reference to understand what the words ‘nudity’, ‘sex’, ‘excretion’, ‘sadism’ or ‘masochism’ mean. The last three terms, which are descriptive of certain kinds of conduct whether portrayed live, printed or photographically, can be considered Malum in se in terms of Commercial exploitation. It is ludicrous and preposterous to suppose that a person dealing in such material would not understand the prohibitions here."

People v. Heller (N.Y. Court of Appeals 1973).

Do you have a cite to go along with this cut and paste. The contention in this 35 year old case that sadism and masochism are self evident terms which do not require definition seems more than a little far fetched.

Most folks do not have first hand knowledge of these practices.

As for the Torture Act prosecution, you are simply wrong. US v. Emmanuel (S.D. Fla. 2007) involved a criminal indictment under the Torture Act.

What do you know. We appear to have a brand new case which might actually be point. Please send me a cite. I would love to review it.

Thanks in advance.

# posted by

Bart DePalma : 3:11 PM

Lisa's brother might use the following vaudeville joke in his upcoming delicious lewd and lascivious constitutional case:

A retired spinster school teacher called the police to complain about a male neighor whom she observed from her house in his home in the nude. The investigating officer came to the spinster's home and asked where she had made the observation. She took him to a room on the second floor of her home and pointed to the window from which she had made her observation. The officer studied the situation with care and said "Lady, I can't see anything like you're talking about." She insisted, saying: "You climb that ladder over there next to the window, lean way over to the right upper corner of the window, and you'll see that man in the nude."

We don't have the benefit of the facts in this case. The defendant might have been standing, full Monty, in front of his picture window facing the public street, hopng, expecting to be seen, perhaps putting on a demonstration. Or he could have been passing quickly from one room to another because of some emergency while he happened to be nude. There might even be some torturous facts involved.

But just how does this lewd and delicious case relate to the topic of the post? Or is this merely another form of Lisa's brother's diversionary tortured logic? Of course, if I live long enough, SCOTUS may enter this case, in which case it would be interesting to consider whether his gummbah would reference the slippery slope of permitting prancing about one's home in the nude with the shades up.

# posted by

Shag from Brookline : 4:08 PM

eric said...

Bart: You will have to supply a definition of "objective" for your question(s) to be answered.

A definition which will provide the defendant and the jury with the same reasonable notice of what is prohibited.

Bart: How do you resolve the logical tension between "objective" and "reasonable?" You are defining objectivity in terms of value judgements.

# posted by

Eric : 4:22 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 4:34 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 4:36 PM

I.Q. test for "Bart":

["Bart"]: State v. Bratina, 73 S.W.3d 625 (Mo. 2002), simply held that the terms ""proper notice" and "proper law enforcement officials" have plain and ordinary meanings and are quite understandable by a person of ordinary intelligence."

Torture does not.

Scoring is in progress and will finish once we renormalise the infinitesimals....

Cheers,

# posted by

Arne Langsetmo : 4:41 PM

If once a man indulges in murder, very soon he comes to think little of robbing; and from robbing he comes next to drinking and sabbath-breaking, and from that to incivility and procrastination.

~ Thomas de Quincey

There is a panoply of "lesser" rights and criminal prohibitions we tend to sidestep in this discussion. We slip past "objectively" defining what might violate our laws that prohibit, no less, mere "cruel, degrading, and inhumane treatment." We slip past our Constitutionally and internationally codified human right barring "compelled testimony" -- be it physically coerced or even merely chemically induced.

However, in the shadow of all the monstrous depravity sanctioned by Bush & Company's radical redefinition of "severe" (the heretofore "objective" standard ~ CAT, Art. 1), it's no wonder.

No, not even the all-but-limitless limits of the Bybee Memo -- To be torture, the memo concluded, physical pain must be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death" -- have constrained us.

Never mind water boarding or sodomy or sensory deprivation. Perhaps we could disembowel a detainee; slicing them open and waving their intestines before their eyes for just a few minutes; managing to sew them back up without causing organ failure or death.

Hey! Here's one! We'll set up a table and a spot light in a detainee's cell. We'll disembowel his wife on the table and project "sock puppets" on the wall of his cell! "Dude! Look! It's a map of your hometown!" All said and done in 30-40 minutes. Bybee by the letter!

No, we have not even managed to stop short of torturing detainees to death.

What do you think, Mr. DePalma? Does torturing someone to death begin to exceed some "objective" standard?

# posted by

manonfyre : 6:13 PM

I said:

The US Torture statute has already been held by at least one court to satisfy the Fifth Amendment due process test for vagueness, and no court has ever struck it down.

Bart said:

No criminal prosecution has ever been brought under the statute. The prior decision was made under much more deferential civil rules.

I said:

As for the Torture Act prosecution, you are simply wrong. US v. Emmanuel (S.D. Fla. 2007) involved a criminal indictment under the Torture Act.

Bart said:

What do you know. We appear to have a brand new case which might actually be point. Please send me a cite. I would love to review it.

Let's start by noting the obvious. When Bart said there was no case interpreting the Torture Act, and that the case I was referring to was a civil case, he had NO IDEA WHAT HE WAS TALKING ABOUT. In fact, I have cited the Emmanuel case on an earlier thread on this site in which Bart was a participant! And the Emmanuel case was decided LAST SUMMER, and has been available for ALMOST A YEAR! It is not a "new" case.

The point is, Bart doesn't know anything about the law of torture. He never did. I have to grudgingly concede he does know something about military commissions-- I disagree with his conclusions, but he has clearly read some of the major cases. But here, he is totally out of his element. He just hit on a talking point-- torture is unconstitutionally vague-- and he never bothered to research whether the caselaw supported his assertion.

Bart, you are a practicing lawyer. I assume you can locate the Emmanuel case. It's quite interesting reading in fact; you will see that federal judges think rather less of Republican talking point-style legal arguments than you do.

# posted by

Dilan : 7:04 PM

"It's very vague, what does that mean, 'outrages upon human dignity'?"

So spoke the greatest fool ever to occupy the white house. But Bart sets his course by this utter incompetent's example.

Bart's "vagueness" is simply a lack of interest. Human dignity? What are you talking about?

Speaking of jokes, reminds me of the one about the camel: Man on a camel sees a sign which says 'painless castration.' He takes his camel in for the procedure. The proprietor of the clinic picks up two bricks and promptly smashes the camels testicles between them, causing the camel to erupt in howls of agony. "BUT YOU SAID IT WAS PAINLESS!!!" protests the camels owner.

"It only hurts when you get your fingers caught between the bricks."

*I notice from Bart's info page that he likes to read the Bible. But he also has conspicuously declined to indicate whether he considers himself a Christian.

# posted by

mattski : 7:44 PM

I notice from Bart's info page that he likes to read the Bible

I suspect he's looking for loopholes.

# posted by

Bartbuster : 10:22 PM

dilan:

Stop being a jerk. I had not heard of the case before and, in our months of discussions on this topic, this is the first time you offered it. If it actually stands for what you claim it does, I stand corrected. We now have one whole case which is applying the torture statue in a criminal context.

If you want to use it as support for your argument and it is not too much of a burden on you, please provide the bloody case number or cite. I looked for it as soon as you offered the name and did not find it.

# posted by

Bart DePalma : 11:24 PM

"Bart" DePalma:

If you want to use it as support for your argument and it is not too much of a burden on you, please provide the bloody case number or cite. I looked for it as soon as you offered the name and did not find it.

You're a freakin' lawyer without Lexis/Westlaw?!?!? What a cheapskate.... How do you do your research to find out if your cites in your briefs are accurate and still valid? Oh, yeah, your idea of "research" is "whatever I believe should be the case", supplemented heavily with "whatever bald assertions I can pull out of my a$$...." In fact, I've caght you doing "research" with Google "cut'n'paste" more than once here.

But FWIW, if you're too damn cheap for Lexis/Westlaw, you can try the Southern District of Florida's site; however, it seems to be down for maintenance for the duration of the Memorial Day weekend. But I had no problems finding links to Emmanuel (albeit paid subscriptions ones through SSRN). Guess you'll have to wait until Monday....

Cheers,

# posted by

Arne Langsetmo : 12:47 AM

Stop being a jerk.

Whoa. Bart doesn't often resort to name calling. But I see a positive gloss here. Instead of high-tailing it out of here after having his hash settled, he's trying to tough it out and salvage some dignity.

Dignity... what a concept.

# posted by

mattski : 6:43 AM

Garth defined torture at 9:40 pm (near the top of the comments) by listing acts that are torture. Bart objected, saying, "You have proven my point that there is no objective definition for 'torture,' there are only lists." A discussion ensued, on other points (that I haven't finished reading, so if this is redundant, I apologize.)

Garth's definition was extensional, perhaps not complete. One can imagine many things to be added to the list as "torture."

But that doesn't make it any less of a definition. Just because the subjective intension of a term varies doesn't suggest that the term is meaningless, or empty as a concept. To impugn a definition because its subjective intension varies from person to person, or with respect to the same person over time, is to be radically skeptical of the whole project of defining terms. From what I've read of Bart's other comments, I don't imagine that that is the approach he would particularly want to take, given his other philosophical commitments.

And while a term defined extensionally has an intension, it's not always easy to specify, but that difficulty doesn't mean that the term is therefore meaningless. See, for example, the literature responsive to Quine's critique of the analytic/synthetic distinction.

# posted by

dmv : 6:35 PM

therandomthinkery said...

Garth defined torture at 9:40 pm (near the top of the comments) by listing acts that are torture. Bart objected, saying, "You have proven my point that there is no objective definition for 'torture,' there are only lists."therandomthinkery said...
Garth defined torture at 9:40 pm (near the top of the comments) by listing acts that are torture. Bart objected, saying, "You have proven my point that there is no objective definition for 'torture,' there are only lists." A discussion ensued, on other points (that I haven't finished reading, so if this is redundant, I apologize.)

Garth's definition was extensional, perhaps not complete. One can imagine many things to be added to the list as "torture."

But that doesn't make it any less of a definition.

I do not disagree.

We have had this discussion for months now. In rebuttal those who claim that the CIA coercive interrogation methods are "obviously" torture, I have responded that the term "torture" cannot be objectively defined because everyone has a different idea of what is meant by the term. This is similar to measuring pain, which any medical professional will tell you is impossible because everyone has different capacities to deal with pain.

I suggested that the only way of making the torture statute workable as a criminal offense is to literally list what is prohibited or limit interrogation to a limited set of techniques such as those set forth in the Army Interrogation manual.

This is why I stated that Garth proved my point.

# posted by

Bart DePalma : 11:20 PM

Bart:
I suggested that the only way of making the torture statute workable as a criminal offense is to literally list what is prohibited or limit interrogation to a limited set of techniques such as those set forth in the Army Interrogation manual.

Perhaps now we're getting somewhere, since Donald Rumsfeld ordered interrogation techniques that went beyond the AFM, Hamdan notwithstanding.

Bart has still refused to supply an objective definition of "objective."

# posted by

Eric : 1:27 AM

"Bart" insists on an "objective" definition of torture despite the fact that the law recognises no such requirement:

In rebuttal those [sic] who claim that the CIA coercive interrogation methods are "obviously" torture, I have responded that the term "torture" cannot be objectively defined because everyone has a different idea of what is meant by the term. This is similar to measuring pain, which any medical professional will tell you is impossible because everyone has different capacities to deal with pain.

Well, you know, if all we need is an "objective" measure, I can proffer one:

How long does it take for the person so treated to break completely and give up 'information' they would not have given up, even with broken arms or electric shock? Simple. Easy to measure. And gets right to the "meat of the matter", doesn't it?

The thugs that were doing the "enhanced interrogations" bragged that they broke people in under three minutes.

"Bart" would have you believe this was due to a new-found sense of civic responsibility and love for 'Murkah in the detainees.

Everyone else sees that "Bart" in not only full'o'sh*te, but also morally depraved in his defence of these policies.

Cheers,

# posted by

Arne Langsetmo : 1:47 AM

arne:

Think about the need for an objective definition from a different angle - that of a JAG prosecuting someone you personally think is guilty of torture.

If you maintain the completely subjective definition of torture and fill the jury with combat veterans who have been through far worse as part of their jobs (not to mention who have little sympathy for the perpetrators of the mass murders which they have personally witnessed), then it will be next to impossible to gain convictions for what you consider to be torture under your far lower personal threshold of pain and discomfort.

However, if you have a set objective standard like the Army Interrogation Manual and the evidence shows the defendants exceeded those standards, then you will have a far easier time getting a conviction.

The objective standard works both ways.

# posted by

Bart DePalma : 11:11 AM

let's just use the UNCAT standard .. we're signatories ...

UNCAT..
Part I
Article 1
For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions

# posted by

Jkat : 12:05 PM

jkat:

The definition to which we agreed in the CAT is the same exact one in our torture statute. The shared definition has the shared problem that it is medically impossible to measure "severe pain." Any use of this definition would be completely subjective depending on one's own tolerance for pain.

# posted by

Bart DePalma : 1:25 PM

"Bart" DePalma:

arne:

Think about the need for an objective definition from a different angle - that of a JAG prosecuting someone you personally think is guilty of torture.

If you maintain the completely subjective definition of torture and fill the jury with combat veterans who have been through far worse as part of their jobs (not to mention who have little sympathy for the perpetrators of the mass murders which they have personally witnessed), then it will be next to impossible to gain convictions for what you consider to be torture under your far lower personal threshold of pain and discomfort.

However, if you have a set objective standard like the Army Interrogation Manual and the evidence shows the defendants exceeded those standards, then you will have a far easier time getting a conviction.

The objective standard works both ways.

"Bart", it might be 'nice' to have an "objective" standard for what constittes every crime, and also an "objective" (and definitive) interpretation of what the Constitution says, and an "objective" means of determining the "clear intent of the voter", and such. But as pointed out to you, Rand's Objectivism is a pile'o'sh*te that all serious philospers reject, and this inattainable and impractical standard is not what is required of the law.

Not to mention, such "objective" standards, while presumably "fair" in being predictable (or purportedly so), won't always be fair in application. The woman with a 0.089 gets off and the man with a 0.093 is convicted. Were both equally impaired? Who knows, but perhaps more "subjective" but nonetheless more meaningful tests might have illuminated the true situation of concern....

The law does (at times) claim a preference for "bright lines", something I noted, but disagreed with; sometimes the available "bright lines" are drawn far from the point of substantive fairness or even relevance to the concerns at hand. That is why sober scholars have given up on cobbling together your fictitious "objective" standard. It simply doesn't exist and would be unworkable in any case.

BTW, you still haven't given me the
"objective" standard for rape. Please do so.

Be that all as it may, I'd note that my proffered "objective" standard for torture above shows clearly that what the maladministration has been doing is exceptional in its severity (if the corpses at Bagram and Abu Ghriab didn't do that). You have yet to acknowledge that fact or to provide an explanation as to how this comes to be, if the maladministration hasn't been torturing....

Cheers,

# posted by

Arne Langsetmo : 1:30 PM

Is there an "objective" definition of pornography? Is there an "objective" definition of sadism? If not, does that imply that neither pornography nor sadism exist?

The generalizing nature of language itself means that clever, ill-intentioned lawyers will always find ways to obstruct the law by sowing confusion and obfuscation.

Where "objective" definitions are not practical, "close enough" (as Shag said in another thread) suffices. And we have juries for exactly that reason, to decide when close is close enough.

Any use of this definition would be completely subjective depending on one's own tolerance for pain.

You are pointing to an unattainable standard, apparently it seems, to thwart legal curbs on sadistic behavior. But your unattainable standard is completely superfluous to a working application of the law banning torture.

# posted by

mattski : 1:41 PM

combat veterans who have been through far worse [than torture] as part of their jobs

You have plied this line before. It is absurd on its face for any number of reasons, but here are two: combat veterans do not have uniform experience. Wars do not produce a uniform, quantifiable experience which 'all' combat veterans attain. Incredibly, different wars differ from each other. Incredibly, different theaters in the same war, differ from each other. Incredibly, different days and different locations within the same theater differ from each other, AND, incredibly, different soldiers in the SAME battle have different experiences from one another.

Here is the second reason: You, Bart, AFAWK, have not been subjected to "enhanced interrogation" techniques, which would be quite necessary if you were to be in a position to evaluate torture vis-a-vis combat. We also have reason to suspect that your experience of combat fell something short of a "typical" Iraq '03-'08 experience.

But please carry on.

# posted by

mattski : 2:08 PM

Tangentially...

Is anyone else disappointed that: (a) we still haven't heard any analysis of the newer torture memo as promised here; and (b) this blog has been silent about the DoJ-IG's report of FBI's experiences at Guantanamo?

Of course, they're busy folk, I know. They should still endeavor to satisfy my every selfish desire, right?

# posted by

dmv : 2:32 PM

mattski said...

Is there an "objective" definition of pornography? Is there an "objective" definition of sadism?

Good points.

The Supremes admitted that they could not define pornography and copped out with the "community standard" non-definition definition. That resulted in enforcement of the laws in rural areas and non-enforcement in urban areas.

Do we really want to argue for a "community standard" definition of torture?

Whose community?

I could live with fellow war fighters setting that standard.

Could you?

# posted by

Bart DePalma : 3:01 PM

would being a former marine officer combat vetran of the viet nam conflict qualify ??

if so you're in a great deal of trouble ..

if the geneva conventions forbid the mere kicking or slapping of a prisioner .. why would you assume that more harsh methods are simply "okay" .. or permissible ??

torture is the deliberate infliction of pain on the body of another .. the measure of the pain is inconsequential to the offense ..

i'd also go so far as to say that any behavior under the UCMJ which would lead to formal charges of assault .. if practiced against a prisioner .. would fill the bill ..

this is akin to saying that cutting someone with a knife isn't an offense unless the cut is over a certain depth .. or length .. which isn't the case at all..

i don't think we need an "objective" standard bart.. torture is too obvious a thing to explain away ..or define out of existence ..

we take a prisoner out of a cell .. we bring them to a given place ..and we commence to do things to their person which make them scream and yell and cry out .. it's a very deliberate act .. and it's intention is obvious..

you're making a silly distinction ..imo ..

no former combat soldier ..sailor .. marine .. or airman would buy into the "objective" definition standard ..

hell .. we even give injured enemy troops medical aid .. we certainly don't withold it ..

we're the united states of america .. we shouldn't torture people in our custody .. it goes against the grain of how we define ourselves .. and this little era of our history is a shameful episode.. it can't be justified ..or mitigated .. but it can be stopped... and is actually already prohibited ..except for some rather dubious legal opinions from O.L.C. which have been fully aired here in this forum.

torture is such an obvious thing if you've ever seen the results .. that it really defies "objective definition" ..it's result on the observers as well as the tortured party are quite subjective ..

if you like to try and develop a subjective standard .. given a small room ..a few simple tools ..and very little of your time .. i can make you a convert in less than 10 minutes ... and you'll have your subjective definition to work from in developing your "objective" definition ...

no ?? well i don't blame you at all ..

meanwhile ..semper fi ..and don't forget to duck when appropriate ..

CWO4 Jkat .. USMC (ret)

# posted by

Jkat : 7:08 PM

Stop being a jerk. I had not heard of the case before and, in our months of discussions on this topic, this is the first time you offered it. If it actually stands for what you claim it does, I stand corrected. We now have one whole case which is applying the torture statue in a criminal context.

Bart:

The case is on Westlaw. And yes, I had brought it up in earlier discussions here on Balkanization, and indeed Anderson commented on what an interesting case it was.

Further, though, you are not really coming to grips with what you did. You confidently stated that there were no cases and no criminal prosecutions in this area, but you did not know what you were talking about when you wrote that. I would say I am not the one being a jerk here.

# posted by

Dilan : 8:05 PM

This comment has been removed by the author.

# posted by

Mourad : 8:20 PM

I see that Bart returns to a theme he has ventilated “ad nauseam” elsewhere, namely that the US statute criminalising torture, is too vague to make a successful prosecution possible.

I find it hard to credit that a common dictionary word is not sufficient to put the citizen on notice of the conduct which is criminalised, but I will leave that aspect of matters to others.

What I found of interest that Bart has a client: “accused of what used to be called lewd and lascivious behavior by simply being seen naked in his house from outside of his house.”

Bart expresses his view thus: ” Given that folks have an express constitutional right to privacy in their homes, the old common law term lewd and lascivious is not considered to be precise enough and a definition of public nudity is now required to pass constitutional muster.”

I wonder if Bart has got hold of the wrong end of the stick on this issue too. This is what I believe to be the relevant Colorado provision: C.R.S. 1963: § 40-7-301.

1) Any person who performs any of the following in a public place or where the conduct may reasonably be expected to be viewed by members of the public commits public indecency:

(a) An act of sexual intercourse; or
(b) An act of deviate sexual intercourse; or
(c) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of any person; or
(d) A lewd fondling or caress of the body of another person.

(2) Public indecency is a class 1 petty offense.

I find it hard to believe that a charge has been laid under this provision simply for being seen naked.

(a), (b) and (d) seem to require the participation of more than one person and sexual congress or the preliminaries thereto.

(c) seems to require more than mere nudity – perhaps something akin to the case of Rex. v. Rouverard, tried by Baron Parke at York Assizes in 1830, where an indictment was preferred against a French teacher (although it does not appear that his nationality was a constituent of the offence):-

"for exposing his person at a window in Micklegate, York, to excite a girl who was a servant on the second floor of the house on the opposite side of the street."

The expression “person” was, of course, the common Victorian euphemism for the penis.

So I really do not see why an objective definition of “nudity” has anything to do with the case as described by Bart. If the accused was not involved in an (a), (b) or (d) act with another or (c) engaged in some act going beyond mere nudity, where is the case to answer ?

Ah! If all we had to worry about were the peccadillos of Colorado’s fornicators and masturbators - not that it will be fun for Bart’s client: whatever his penile sexual exposure – it seems his penal exposure is to a maximum of 18 months in the County Jail or a fine of US$5,000 or both – still, there’s always useful community service (the mind boggles at the possibilities there).

And at least by instructing Bart he may have unwittingly preserved one avenue of appeal.

Still, that’s a long way from the legality of government mandated torture. On this, as on the honesty of the California Supreme Court on another thread, Bart utterly fails to convince me that he has a properly arguable case. One wonders why he bothers .

Perhaps this is why - Bart has another blog: Citizen Pamphleteer, but nobody responds to the posts which poor Bart puts up there. This is hardly surprising when one browses quickly through and sees what drivel Bart writes. By way of example, today’s “little gem” begins with the assertion: “As evidence of the progress toward the defeat of Al Qaeda and its allies in Iraq becomes indisputable…” SAYS WHO?

One only has to read a few more of Bart’s miscellaneous rants to realise that the 5,000 or so other adults of Bart’s mountain retreat might not consider Bart as the ideal guest to invite round for drinks on the patio this holiday weekend. So, perhaps he’s lonely and just needs some contact with humans.

Perhaps his latest client could assist. Meanwhile, let’s just regard his posts as a “cry for help” from “a voice crying from the wilderness of Woodland Park”

Happy holiday weekend to one and all – even you, Bart.

# posted by

Mourad : 8:39 PM

jkat said...

would being a former marine officer combat vetran of the viet nam conflict qualify ??

if so you're in a great deal of trouble ..

if the geneva conventions forbid the mere kicking or slapping of a prisioner .. why would you assume that more harsh methods are simply "okay" .. or permissible ??

jkat, as a former Marine, you should also know that Geneva Convention POW privileges are extended to those who follow the laws of war and if you did not follow the laws of war as a Marine (like fighting disguised as a civilian), that those privileges would not extend to you.

torture is the deliberate infliction of pain on the body of another .. the measure of the pain is inconsequential to the offense ..

Sorry, but the definition of torture under the CAT and the Torture Statute bars the intentional infliction of severe pain. This implies that the infliction of all pain which does not meet the threshold of being severe is permissible. That distinction is the problem.

i don't think we need an "objective" standard bart.. torture is too obvious a thing to explain away ..or define out of existence ..

You are apparently confusing the privilege extended to Geneva Convention POWs not to be subject to any coercive interrogation whatsoever and the standard for prisoners other than Geneva Convention POWs not to be subject to torture - which is the intentional infliction severe pain.

The standard of no coercive interrogation is plain and easy to understand.

The standard for torture, which permits all but severe pain is not clear at all because pain cannot be objectively measured.

we're the united states of america .. we shouldn't torture people in our custody .. it goes against the grain of how we define ourselves ..

No one disagrees with this. The discussion is over what constitutes torture.

meanwhile ..semper fi ..and don't forget to duck when appropriate ..

CWO4 Jkat .. USMC (ret)

A hearty Airborne and hooah back to you as well.

# posted by

Bart DePalma : 9:15 PM

Dilan:

When you offer case law in support of your argument to a court do you offer the name and tell the judge that she is a practicing attorney and to go find the case on Westlaw?

Does this argument technique work for you?

Heaven forfend if the court like my humble solo law firm does not have a Westlaw subscription that covers SD Fla.

Very professional.

Once I had the time to play in your citation snipe hunt, I presume that you are referring to the case against Charles Emmanuel aka Chuckie Taylor, the American son of dictator Charles Taylor who is accused of torture.

Once I have a chance to check out PACER, I will try to find the motion briefs and order with which you are playing hide and seek. Then we will see whether you are correctly representing the case.

# posted by

Bart DePalma : 9:28 PM

One wonders if Bart's ability to find time to check PACER will depend on how well the case supports his line of reasoning. After all, there are plenty of people who will consider various verdicts based on the reasonableness doctrine to be illegitimate. Of course, this assertion likely will require a cite where none is ever offered to the converse. Such is the way of bad faith argumentation.

# posted by

Eric : 11:17 PM

The following may not be the dumbest thing Lisa's bro has said:

"Do we really want to argue for a 'community standard' definition of torture?

Whose community?

I could live with fellow war fighters setting that standard.

Could you?"

but it's near the top (or bottom?) of the list.

What about the community of the "fellow war fighters" at Abu Graib setting the "objective' standard for torture? Would that "objective" standard apply if the enemy war fighters applied such standard upon our community of "fellow war fighters?" Or would the community of "fellow war fighters" include the enemy war fighters in setting the torture standard (sort of cross-border military egalitarianism)?

Lisa's bro's concept might make for a "Mad Max" sequel but makes no sense in addressing torture in this day and age. Hopefully civilian rule will continue to govern over military rule.

# posted by

Shag from Brookline : 4:51 AM

Rather than get bogged down in poor Bart’s dubious arguments about the enforceability of the torture statute (to me at least as questionable as his projected argument on the need for an objective definition of nudity in a ‘flasher’ prosecution), it is perhaps opportune to revisit a more fundamental issue.

A military unit is a very blunt instrument to use in a capacity which is essentially a policing role. Military action against insurgencies may produce temporary relief but will certainly fail over time.

This account is taken from the Encylopedia Britannica article on the Amritsar Massacre of 1919:-

“Gen. R.E.H. Dyer was sent with troops from Jullundur to restore order, and, though no further disturbances occurred in Amritsar until April 13, Dyer marched 50 armed soldiers into the Jallianwallah Bagh (Garden) that afternoon and ordered them to open fire on a protest meeting attended by some 10,000 unarmed men, women, and children without issuing a word of warning. It was a Sunday, and many neighboring peasants had come to Amritsar to celebrate a Hindu festival, gathering in the Bagh, which was a place for holding cattle fair and other festivities. Dyer kept his troops firing for about ten minutes, until they had shot 1650 rounds of ammunition into the terror-stricken crowd, which had no way of escaping the Bagh, since the soldiers spanned the only exit. About 400 civilians were killed and some 1200 wounded. They were left without medical attention by Dyer, who hastily removed his troops to the camp. [The Lt. Governor of the Punjab] Sir Michael O'Dwyer fully approved of and supported the Jallianwallah Bagh massacre, and on April 15, 1919, issued a martial law decree for the entire Punjab…

Dyer was relieved of his command, but he returned to England as a hero to many British admirers, who presented him with a collected purse of thousands of pounds and a jewelled sword inscribed "Saviour of the Punjab."

The Jallianwallah Bagh massacre turned millions of patient and moderate Indians from loyal supporters of the British raj into national revolutionaries who would never again trust to British "fair play" or cooperate with a government capable of defending such action. The following year, Mahatma Gandhi launched his first Indian satyagraha ("clinging to the truth") campaign, India's response to the massacre in Jallianwallah Bagh.”

The lesson of Amritsar was not learned. British military intervention produced atrocities in, for example, the Malayan insurgency, in the repression of the Mau Mau in Kenya, in the repression of intercommunal terror in Cyprus, in the repression of terrorism in Northern Ireland and most recently in Iraq. In each case the military intervention failed over time. If one looks at a photograph of the meeting of heads of state and government of the Commonwealth at any time after, say 1965, a majority of the presidents and prime ministers gathered with Her Majesty had previously been “guests of Her Majesty” in detention or exile prior to achieving independence for their country.

I point this out at the beginning, because as a Briton, posting to a US blog, I would not wish it to be thought that my strictures are tainted by any ‘holier than thou’ approach. Our experience is not unique. The French have to answer for the systematic use of torture both in Indo-China and Algeria.

Since the end of WW2, while signing up to conventions abjuring the use of torture and inhuman and degrading treatment, Western governments have turned a blind eye to the use of torture and murder elsewhere. In the Americas, the US has supported regimes which made use of torture and extra-judicial killing, such as that of the Argentinean Junta, of Pinochet in Chile (to name but two) – and both those regimes had their UK supporters. In the Middle East, all the Western powers turned a blind eye to the use of torture by SAVAK in Iran, by Saddam Hussein in Iraq, by Sadat and Mubarak in Egypt, by little King Hassan in Morocco and by some very nasty thugs across sub-Saharan Africa. There are countless other examples and in almost every case, the blind eye was turned, because it was perceived to be in the national or Western economic interest to do so.

While, the Western European democracies have learned the hard way that torture and extra-judicial killings only postpone the inevitable at best, the USA has until quite recently had little direct experience of fighting asymmetric wars (to use the current military jargon). The French colonial war in Indo-China ended effectively with Dien-Bien-Phu in 1954 and partition. They tried the same tactics in Algeria and failed there too. The USA got sucked into the aftermath of Indo-China and eventually suffered the same fate as the French. And of course, that insurgency war had its share of conduct contrary to the laws of war, not least the massacre at My Lai on 16th March 1968. There were, of course, many other atrocities, just as there have been such atrocities in Iraq.

Atrocities and instances of torture or inhuman treatment can be spontaneous: troops going berserk as may have happened at My Lai. In asymmetric warfare, they can be the result either of encouragement from the top (express or tacit), or sheer incompetence and lack of discipline on the ground. All too frequently, officers in the field lose patience and give orders which should never be given. These can range from the simply stupid, such as using air or rocket power on population centres (guaranteed to fuel insurgency) to the criminal (torture or inhuman treatment of detainees). It is very hard indeed for the enlisted, the NCO or the junior officer to say no to an order or even to a hint that “the gloves should come off”.

As regards torture and inhuman and degrading treatment in Afghanistan and Iraq is that there is a mounting body of evidence that this was not the consequence of “a few bad apples” which was the initial official line, but of an official “gloves off” policy. The book and documentary “Standard Operating Procedure” make a powerful case fixing responsibility at the highest levels of the administration. So does the documentary evidence slowly and painfully coming to light.

So does the USA bury the truth and leave it to historians to uncover after a decent interval (UK fashion), or rewrite history (like the films on WW2 subjects showing mixed race battalions in a then segregated US Army), or does the USA demonstrate that democratic accountability works better in the USA than it has thus far done in “old Europe” ?

The answer may depend on the outcome of the upcoming general election. I do not see a McSame administration wishing the facts to enter the public domain and it might be too painful even for the enquiry foreshadowed by Senator Obama.

# posted by

Mourad : 9:19 AM

eric said...

One wonders if Bart's ability to find time to check PACER will depend on how well the case supports his line of reasoning.

Cute.

Actually, I have no reason to doubt that the trial court declined to find that the Torture Statute was unconstitutional on its face. That would require clearing the extraordinarily high hurdle of finding that there is no set of facts under which the statute can work. A court could reasonably find that there are situations of obviously severe pain under which the statute could apply. For example, I read that this defendant is accused of allowing ants to sting and eat his victims alive. Under those facts, this statute could be constitutional.

[BTW, I doubt that dilan is misrepresenting what little he has disclosed about the arguments and holding of the court in what was probably an initial motion to dismiss. Rather, I am needling him for childishly playing hide and seek games with case cites. This kind of game playing might be common practice for bloggers, but is pretty unprofessional for an attorney or an academic.]

In any case, a trial court is more likely to allow evidence to be presented at trial before considering a motion on whether the statute is constitutional as applied to the facts of the case.

In that way, if the evidence shows that Chuckie Taylor was responsible for inflicting some of the hideous pain alleged to have occurred in that civil war, then the judge can dodge the constitutional issue by holding that a jury can reasonably find that the defendant intentionally inflicted severe pain and then let the constitutionality issue be decided on appeal.

Conversely, if it appears that the Government has not proven its case, a trial court will generally allow the case to go to the jury because an acquittal will render the constitutional issue moot.

Only where the government has offered evidence of acts which inflicted some measure of pain or discomfort, but not necessarily severe pain, will the trial court be forced to seriously consider the "as applied" constitutional issue of whether the Torture statute provided reasonable notice of what was prohibited. It is in this twilight middle zone where a jury will actually have to perform the impossible task of objectively measuring the degree of pain and be compelled to subjectively guess.

Even in this case, most trial courts before which I have practiced will allow the case to go to the jury and allow the constitutional issues to be left to the appellate court. Courts do not like finding statutes to be unconstitutional and like being reversed even less.

However, this case will be worth keeping an eye upon over the upcoming months.

# posted by

Bart DePalma : 10:31 AM

shag from brookline said...

Lisa's bro's concept might make for a "Mad Max" sequel but makes no sense in addressing torture in this day and age. Hopefully civilian rule will continue to govern over military rule.

That was my point.

Those of you who think that the CIA coercive interrogation techniques constitute unlawful torture should join me in calling for the law to be reformed to specify exactly what is and is not prohibited because these cases may be tried before military and not civilian courts whose jurors may not share your world views.

Criminal law should not be a guessing game dependent upon the subjective world views of the jurors.

# posted by

Bart DePalma : 10:39 AM

mourad:

Actually, the United States, with the sore exception of Vietnam, has a long history of waging and winning counter insurgencies. See the Indian Wars, the Moros in the Philippines and more recently in Iraq and across the Middle East.

# posted by

Bart DePalma : 10:47 AM

Criminal law should not be a guessing game dependent upon the subjective world views of the jurors.

[shaking head]

What was your proposed alternative, Bart? There are reasons we rely upon juries, very good reasons indeed.

Are you advocating a return to some form of Kingship? That would be sort of odd for someone who recently--and preposterously--accused "the left" of a false faith in absolute leadership. How you can go on like that when your yo-yo neo-con soulmates spin fantasies about the "unitary executive" is frankly mind-boggling.

# posted by

mattski : 12:32 PM

Bart,

You keep framing this from a criminal perspective -- can we convict on a specific act. But the real starting point here is prospective advice -- what guidelines should interrogators follow that will (hopefully) allow them to avoid prosecution in the first place.

The definition of torture is "severe" pain, which you argue is impossibly subjective since everyone's pain tolerance is different. Your prospective advice therefore appears to be push the envelope. Test each prisoner to find out his indivdual tolerance and stop just short of it. Since the line between torture and "mere" cruel, inhumane and degrading treatment is impossible to draw, let's see how cruel and inhumane we can be while stopping short of outright torture. You claim to be keeping within the letter of the law, but you are certainly violating its spirit.

I would propose an alternative piece of prospective advice. Don't push the envelope. Since everyone's tolerance of pain is different, assume a low tolerance. Since it is impossible to draw the line between torture and "merely" cruel and inhumane, don't try. Stay within what is humane and the whole question will be moot.

# posted by

Essayist-Laywer : 1:03 PM

Another question, Bart. You say a ban on torture defined as "severe pain" is so vague and subjective as to be unenforceable. Yet you have no difficulty saying that sexual abuse of the type that took place at Abu Ghraib violates the GC3 Article 3(1) ban on anything "humiliating and degrading."

How do you know? Surely "humiliating and degrading" is even more vague and subjective than "severe pain." At least everyone can agree on what does and does not cause pain; the only subjective part is when it becomes "severe." But there is ample subjective room for disagreement over what is "humiliating and degrading" and an almost limitless number of individual quirks.

# posted by

Essayist-Laywer : 1:16 PM

Bart wrote:-

“Actually, the United States, with the sore exception of Vietnam, has a long history of waging and winning counter insurgencies. See the Indian Wars, the Moros in the Philippines and more recently in Iraq and across the Middle East.”

Firstly, Bart, neither the Indian Wars, the Philippine-American war, nor the Moro insurrection redound to US credit any more than many British colonial adventures. Ask the Native Americans.

Vietnam you have conceded was a disaster.

As for the “Enterprise of Iraq”, which I am confident will go down in history as having been as ill-fated as Philip II of Spain’s “Enterprise of England”, not only has the USA completely failed in every stated and unstated objective save that of removing Saddam, it has created insurgency and terrorism where there was none before at a cost which US children yet to be born and their children will still be paying, not to mention the casualties on both sides. So far as the Middle East as a region is concerned, the prospects are dire.

I know North Africa and the Middle East very well indeed. I have had clients there for 25 years or more. I have visited every single country in North Africa and the Middle East, and worked for several years in some of them. Since I have some fluency in dialectal Arabic and am a British Muslim, I have some insight into what the ”Enterprise of Iraq has wrought.

When I first went to Algeria, President Kennedy was a national hero. Just about every home I visited - and I was admitted to many – had a picture of Kennedy on the wall in a place of honour. That situation was replicated across the whole region.

Thereafter as later US administrations continued to arm and support repressive and corrupt regimes and connive in the installation of others in pursuit of stable oil supplies, American influence and popularity has declined and support for a pernicious brand of fundamentalism has risen – and it is still spreading like wildfire particularly among the younger generation in Europe as well as in the Middle and Far East. For them, the USA and its allies are seen as "the enemy".

As a measure of US popularity- try reading the current State Department travel advisory for Algeria.
http://travel.state.gov/travel/cis_pa_tw/tw/tw_929.html

That's how popular US nationals are at the moment - quite a big change from the Kennedy days.

The USA will be out of Iraq within 2 years. If you are very lucky, the departure will not be quite as ignominious as the evacuation of the US Embassy in Vietnam but it will not be far off.

There must be doubts that Iraq will survive at all as a nation state. Fundamentalism will continue to thrive and it is entirely possible that each of the Gulf Co-Operation Council sheikdoms will implode. The dominant regional power will be Iran – in fact it is already, and if you had not noticed the principal Shia cleric, in Iraq, HE Ayatollah Sistani, has just issued a decree forbidding the faithful to supply food to the US occupation forces – symbolic I know, but a potent symbol.

With a great deal of luck and restraint, the battle for hearts and minds within Islam may be won. That could take as long as 50-100 years. I am not confident of seeing that come about in my lifetime. It is possible that the process will be speeded up by ‘regime change’ in Washington, I hope so.

# posted by

Mourad : 2:59 PM

enlightened layperson said...

Bart, You keep framing this from a criminal perspective -- can we convict on a specific act. But the real starting point here is prospective advice -- what guidelines should interrogators follow that will (hopefully) allow them to avoid prosecution in the first place.

I agree.

This is what the interrogators have been pleading for because the law itself tells them very little about where the line is.

That is what the Yoo memo concerning the CAT and Torture Statute and the other still classified memos actually setting out the guidelines for the CIA coercive interrogation program were meant to do. If Congress wishes to change those guidelines, I suggest that they provide atleast as much detail as was provided by DOJ and CIA.

The definition of torture is "severe" pain, which you argue is impossibly subjective since everyone's pain tolerance is different. Your prospective advice therefore appears to be push the envelope. Test each prisoner to find out his indivdual tolerance and stop just short of it.

OMG NO! The pain tolerances to which I am referring belong to those judging that the CIA coercive program constitutes severe pain. My point was that the pain tolerances of the largely sedentary civilians who are assuming the roles of judge and jury are artificially low when compared to war.

I would propose an alternative piece of prospective advice. Don't push the envelope. Since everyone's tolerance of pain is different, assume a low tolerance.

I cannot agree. This approach artificially presses the scale between gaining intelligence to save lives and avoiding torture too much away from gaining intelligence to save lives.

I would alternatively suggest that the the pain involved in true torture should at minimum exceed that suffered routinely by our soldiers in the field fighting the war. Anything less is providing a luxury to an enemy which has not earned such benefits.

# posted by

Bart DePalma : 3:23 PM

"Bart" admits being a cheapskate:

Heaven forfend if the court like my humble solo law firm does not have a Westlaw subscription that covers SD Fla.

Very professional.

No, it would be unprofessional. Just like it would be unprofessional of a practising lawyer not to have such.

In my field, if I have to buy a copy of the standards, if I don't have them, I buy them. And expense them. To ignore them would be disastrous. And if I don't know what they say, I don't tell anyone else that I know what they say (or equally unprofessionally, say, "no one could have known....").

Then again, it would be unprofessional of a laywer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation" (See, e.g.. MRPC 8.4(c)).

Cheers,

# posted by

Arne Langsetmo : 3:27 PM

Mourad:

1) Earlier you claimed that it was impossible to win a war against an insurgency. My reply was to demonstrate that this is incorrect. The US has won every counter insurgency campaign into which it entered except for Vietnam.

Vietnam was hardly impossible to win. LBJ simply lacked the political will to invade and pacify all of Vietnam, not just the South, and the strategic imagination to enter into an unofficial alliance of convenience with the Chinese against the Soviet/Vietnamese alliance to cut off the Vietnamese from outside supply.

2) Your current complaint that the various insurgencies which we have defeated did not like being defeated is neither here nor there. If the price of creating the United States was the defeat of the Indians, so be it.

3) Your comparison of Iraq and the Spanish Armada is ludicrous. For the Spanish to have duplicated our current position in Iraq, they would have had to defeat the English Army, elect a Spanish friendly government who helped the Spanish defeat a Protestant insurgency, and then started to bring Spanish troops home in victory - all at the cost of of around 1% of GDP and history's lowest KIA rate.

4) I could care less if the United States is not popular in the Arab street. War is not a popularity contest. Rather, the goal of our military counter offensive against Islamic fascism was to destroy the Jihadis and to make them too unpopular to function as an insurgency. As my above linked posts demonstrate, we have largely achieved this goal in the past few years rather than the 50-100 you forecast.

We should be spending this Memorial Day thanking the troops for their sacrifices in achieving this victory which has made us safer here and abroad - not denigrating their achievements.

# posted by

Bart DePalma : 4:12 PM

"Bart" DePalma:

Those of you who think that the CIA coercive interrogation techniques constitute unlawful torture should join me in calling for the law to be reformed to specify exactly what is and is not prohibited ...

The only reason you want to call for this (and you weren't exactly screaming about the unfairness of it all before this stuff started coming out and you needed to flack for the crim'nuls in th emaladministration) is that you want to pretend that torture wasn't illegal when the maladministration was doing it. We're of the opinion that it was illegal all along.

... because these cases may be tried before military and not civilian courts whose jurors may not share your world views.

No. If the CIA was doing it, they would be tried in civilian court.

If the military was doing the torture, they'd be tried under the UCMJ. But the UCMJ would prohibit the acts in question, aside from the CAT.

Cheers,

# posted by

Arne Langsetmo : 5:50 PM

"Bart" DePalma:

Criminal law should not be a guessing game dependent upon the subjective world views of the jurors.

So you say (again. But you ignore my response to this 'wish' of yours.

And you haven't provided the "objective" definition of rape yet. Please do so.

Cheers,

# posted by

Arne Langsetmo : 5:53 PM

Bart DePalma wrote...

"I suggested that the only way of making the torture statute workable as a criminal offense is to literally list what is prohibited or limit interrogation to a limited set of techniques such as those set forth in the Army Interrogation manual."

I know it was a long time ago, but the initiative that started this whole thread, and which you dismissed out of hand, in fact calls for a single standard of interrogation. See paragraph five at http://www.rejecttorture.org/ntne.html

And yet somehow, your first response to the initiative was to blindly snipe, rather than finding out whether it called for exactly what you claim to support. So please pardon me if I and others remain skeptical of your motivations.

# posted by

nvs : 6:15 PM

i've got to say i agree with enlightend lay person here bart .. my perspective would be to not allow myself or those under my charge to get into a situation where they could be charged .. i'm not interested in a defense.. i'm interested in avoidance of exposure to charges in the first place.

looking at both the 3rd geneva convention and the fourth .. the treatment of captives .. both military and civilian has laid down a groundwork of clear humanitarian standards ..

using those requirements as a guide .. anything which provides for less is questionable on it's face ..

i'll stick with my aforementioned standard .. and that was: anything that would get you charged with assault .. or worse .. under the rules of the UCMJ should be prohibited to interrogators ..period.

a standards working from "the level of pain inflicted" has already crossed that simple bright line ..

the truly sad part of all this is .. it's entirely unnecessary if we had .. or if we return to a simple committment of not perpetuating violence upon the bodies of those in our custody .. rather than focusing our efforts in excusing excesses which should never have been undertaken in the first place..

had the bush administration simply followed the letter and intent of the laws as written and clearly understood within US statue law .. and international standards .. all this hoop-jumping would be totally unnecessary ..

imo .. it's much simpler to identify and prosecute the violaters than it is to manufacture a faux-legal loophole excusing their refusal to abide by the common and easily understood rules of humane conduct concerning prisoners ..

i'm certain your daily job as a criminal defense attorney makes you tend to view these issues in a different light .. but.. imo .. the easiest course of action to avoid troubles is not to place oneself on the conveyor belt of defending potential offenses.. quite simply put .. we should obey the law and cleave to the easily recognized standards of the past .. and not follow mr bush .. mr cheney .. mr gonzales and mr yoo .. mr bybee and their brethern down the dark rabbit-hole their attempts to carve out an exception to the rules has created ..

and i am most heartened by the fact that the greatest amount of resistance to the implementation of the "new standard" came from the JAGS .. led by the T-JAGS .. they are the ones who taught me the standards in the first place some 40 years ago .. and i'm glad their tradition continues on and has not been corrupted ...

war is a dehumanizing experience for all those exposed to it's evils .. we do not need to make it any more brutal than it already is by allowing anything which approaches mistreatment of surrendered/captured combatants held in our custody .. we have a duty to be humane captors regardless of.. and unassociated to.. the tactics or the nature of the specific enemy we engage ..

the difference between the two approaches define what once i would have termed our national honor ..

imo ..torture .. or anything which can be construed as approaching it .. isn't becoming to our national character ..

further .. imo .. we need to throw the proponents of these "new" policies to the dogs and return to compliance with the normative standards pre-bush and company .. not turn the world and the law on it's head to try and excuse the excesses of a few determined scofflaws ..

# posted by

Jkat : 6:18 PM

Bart,

I have read your latest post. The one assertion I agree with is that on your Memorial Day, just as on our Armistice Day, we should indeed think of veterans. The casualty figures speak for themselves and the problems of the returning veterans are grossly understated by the Administration. See this extract from an article of 25th May 2008 by Emanuel Margolis, of Veterans for Common Sense, himself a Purple Heart veteran of WW2, an attorney, and an adjunct professor at Quinnipiac Law School:

“The Veterans for Common Sense lawsuit has already demonstrated that the VA intentionally misled Congress and the public about the epidemic of veterans' suicides. Here are the facts squeezed out of the government to date:

• 120 veterans commit suicide every week.

• 1,000 veterans attempt suicide while in VA care every month.

• Nearly one in five service members returning from Iraq and Afghanistan (approximately 300,000) have post-traumatic stress disorder symptoms or major depression.

• 19 percent of post-Iraq and Afghanistan veterans have been diagnosed with possible traumatic brain injury, according to a Rand Corp. Study in April.

• A higher percentage of these veterans suffer from post-traumatic stress disorder than from any previous war because of "stop loss" or an involuntary extension of service in the military (58,300), multiple tours, greater prevalence of brain injuries, etc.

The Veterans for Common Sense case has already uncovered widespread breakdown of the VA's health care for veterans suffering from post-traumatic stress disorder. The Rand Corp. study demonstrates that, in addition to the 300,000 Iraq and Afghanistan war veterans diagnosed with PTSD, an additional 320,000 have sustained physical brain damage resulting from traumatic brain injury. A majority of these injured GIs are receiving no help from the Defense Department or the VA, which are more concerned with covering up such unpleasant facts than providing care and paying disability pensions.
…
These are the real costs of President Bush's misbegotten and mismanaged wars. These are the costs that the administration seeks to hide while it attempts to make the test of patriotism the wearing of flag pins in our lapels! It's what is underneath those flag pins that really matters. It is called compassion. It is real patriotism as opposed to the fraud of "Mission Accomplished" and promises of victory.”

http://www.courant.com/news/opinion/commentary/hc-commentarymargolis0525.artmay25,0,4610803.story

I do not think there is any need to comment further on your assertions that the USA has achieved a victory in Iraq, or against salafist terrorism. These are no more than delusions.

The plain fact is that the administration’s decision to “take the gloves off” in relation to torture and inhuman and degrading treatment has effectively scuttled any prospect of further international support for the “Enterprise of Iraq”. The prospects of a further renewal of the UN mandate for the occupation are doubtful. HE Ayatollah Sistani wants US forces to leave and thereafter Iraq may well descend into chaos.

As far as your continued posturing on torture is concerned, I concur with every word in jkat’s 6.8 pm post.

# posted by

Mourad : 8:14 PM

When you offer case law in support of your argument to a court do you offer the name and tell the judge that she is a practicing attorney and to go find the case on Westlaw?

You are not a judge and you are not an opposing lawyer in a case. I think in internet debates simply referencing the case is fine, Bart.

# posted by

Dilan : 8:28 PM

I would alternatively suggest that the the pain involved in true torture should at minimum exceed that suffered routinely by our soldiers in the field fighting the war. Anything less is providing a luxury to an enemy which has not earned such benefits.

Yes, you have raised this point many times before. I don't know if anyone has responded head-on, but I will. There is no doubt that soldiers in combat are routinely exposed to things it would be unacceptable to expose captives to. For one thing, soldiers are regularly killed and maimed in combat. You may reply that being killed or maimed is not what you mean by "suffered routinely by our soldiers in the field." All right, but certainly soldiers in the field are routinely placed in danger of being killed or maimed. It is not acceptable to place captives in such danger. The routine rate of death or injury among soldiers in combat would be utterly unacceptable for captives.

Once again, you may say that is not what you have in mind. You are talking about deprivation of food, sleep, physically strenuous activity, discomfort, etc. The difference between what a soldier endures with weapons in his hands and friends by his side, active and fighting and what a captive endures, helpless and along, surrounded only by enemies and at their mercy is, indeed, subjective, but it is no less real for that.

And if that argument does not convince you, consider this. There is an excellent, purely pragmatic reason to make captivity more physically pleasant than combat. If captivity is no improvement over combat, why would anyone ever surrender?

# posted by

Essayist-Laywer : 8:57 PM

"Bart" DePalma says a bit more than he should:

[enlightened layperson]: The definition of torture is "severe" pain, which you argue is impossibly subjective since everyone's pain tolerance is different. Your prospective advice therefore appears to be push the envelope. Test each prisoner to find out his indivdual tolerance and stop just short of it.

["Bart"]: OMG NO! The pain tolerances to which I am referring belong to those judging that the CIA coercive program constitutes severe pain. My point was that the pain tolerances of the largely sedentary civilians who are assuming the roles of judge and jury are artificially low when compared to war.

What a pile of horsecrap. "Bart" pretends that the military are the only people that can know what real pain is. Nonsense, of course. NOt to say that war doesn't cause pain; of course it does, but that doesn't deter war enthusiasts like "Bart". Matter of fact, he kind of likes pain:

[enlightened layperson]: I would propose an alternative piece of prospective advice. Don't push the envelope. Since everyone's tolerance of pain is different, assume a low tolerance.

["Bart"]: I cannot agree. This approach artificially presses the scale between gaining intelligence to save lives and avoiding torture too much away from gaining intelligence to save lives.

"Bart" pretends we've gained 'intelligence' that has "save[d] lives". Assumes facts not in evidence. Nonetheless, such utilitarian, morally relativistic "benefits" are irrelevant; torture is not excused by so-called "good motives". See, e.g., the Convention Against Torture, that makes such plain as day. IOW< there is no "scale" here, no balancing.

["Bart"]: ... I would alternatively suggest that the [] pain involved in true torture should at minimum exceed that suffered routinely by our soldiers in the field fighting the war. Anything less is providing a luxury to an enemy which has not earned such benefits.

Ahhhh, yes. "Bart"'s actual feelings start to seep through the dross he's spreading here... So, inadvertently, "Bart" essentially admits that "it's the pain, stoopid!" As others have pointed out. The desire to hurt those that have (supposedly) hurt you is understandable. That doesn't make it legal (or even moral; "Bart" ought to pay attention to the teachings of one Jewish scholar 20 centuries ago).

["Bart"]: This is what the interrogators have been pleading for because the law itself tells them very little about where the line is.

That is what the Yoo memo concerning the CAT and Torture Statute and the other still classified memos actually setting out the guidelines for the CIA coercive interrogation program were meant to do. If Congress wishes to change those guidelines, I suggest that they provide at least as much detail as was provided by DOJ and CIA.

Oh, horsepuckey. The maladministration wanted to find a way to "legalise" the stuff they wanted to do (or to convince those that thought it illegal to go along or at least close their eyes). And now with Mukasey refusing to press charges against anyone that relied on the deficient and now withdrawn Yoo memo because they relied on this memo, it looks like they managed to do this.

Cheers,

# posted by

Arne Langsetmo : 10:24 PM

"Bart" DePalma utter words that should be immortal (in additionto immoral):

If the price of creating the United States was the defeat of the Indians, so be it.

But a slight error in spelling: That should be "stealing".

Anyone want to join in "adverse possession" of "Bart"'s shanty in Colorado? Hell, we need it more than he does, even if he doesn't think so....

Cheers,

# posted by

Arne Langsetmo : 10:29 PM

Dilan:

["Bart"]: When you offer case law in support of your argument to a court do you offer the name and tell the judge that she is a practicing attorney and to go find the case on Westlaw?

[Dilan]: You are not a judge and you are not an opposing lawyer in a case. I think in internet debates simply referencing the case is fine, Bart.

Indeed. Redbook style is not necessary here as long as sufficient information is conveyed. In fact, Redbook style may be obsolete in the era of Internets, HTML, and links.

But I'd note that "Bart" is hardly in a position to complain about alleged deficiencies in anyone else's cites, being the master of the unsupported assertion himself, to be followed soon after by the refusal to provide any cites to support his bare assertions even when explicitly requested....

Cheers,

# posted by

Arne Langsetmo : 10:53 PM

I am often accused of being a day late and a dollar short, but take a look at the video of "The War Prayer" (narrated by Peter Coyote) at:

http://thewarprayer.com/war_film.html

This was written by Mark Twain and published posthumously. I don't recall if it was included in Twain's "Letters from the Earth" but consider a God who listens to all prayers, expressed and implicit, ours and our enemies. Even Andy Rooney got in his two cents on "60 Minutes" Sunday by suggesting that on Memorial Day we honor the young and the unborn and protect them from wars. Torture leads to future wars, or at a minimum counterinsurgencies.

# posted by

Shag from Brookline : 6:27 AM

Okay, so now I'm two dollars short. How does war play into tax policy? Take at look at the Introduction, here:

http://www.urban.org/books/warandtaxes/intro.cfm

to the recently published "War and Taxes" for an idea. The title might suggest that "war" should be added to the traditional sure things in life of "death and taxes." (And if Lisa's bro keeps up his drumbeat, we might add "torture.")

# posted by

Shag from Brookline : 6:45 AM

enlightened layperson said...

BD: I would alternatively suggest that the the pain involved in true torture should at minimum exceed that suffered routinely by our soldiers in the field fighting the war. Anything less is providing a luxury to an enemy which has not earned such benefits.

Yes, you have raised this point many times before. I don't know if anyone has responded head-on, but I will.

That is why I enjoy corresponding with you. Most try to change the subject away from the hard issues.

There is no doubt that soldiers in combat are routinely exposed to things it would be unacceptable to expose captives to. For one thing, soldiers are regularly killed and maimed in combat. You may reply that being killed or maimed is not what you mean by "suffered routinely by our soldiers in the field."

That is correct. I am speaking about everyday life in the field which does not earn the Purple Heart.

You are talking about deprivation of food, sleep, physically strenuous activity, discomfort, etc. The difference between what a soldier endures with weapons in his hands and friends by his side, active and fighting and what a captive endures, helpless and along, surrounded only by enemies and at their mercy is, indeed, subjective, but it is no less real for that.

Are you arguing that the stress of being held as a prisoner is somehow torture?

And if that argument does not convince you, consider this. There is an excellent, purely pragmatic reason to make captivity more physically pleasant than combat. If captivity is no improvement over combat, why would anyone ever surrender?

To avoid being killed or wounded, which is far worse than anything in the CIA coercive interrogation program.

Indeed, I would contend that being hunted down on the battlefield by a military which you cannot seem to stop no matter what you do is terror/mental pain far in excess of the CIA interrogation program.

In any case, we do not have to speculate too much on this issue. The wide publicity of the CIA interrogation program and the far worse actual war crimes at Bagram and Abu Ghraib has not stopped al Qaeda from surrendering around the world in the thousands.

# posted by

Bart DePalma : 10:03 AM

"Bart" DePalma:

[to Enlightened Layperson]: That is why I enjoy corresponding with you. Most try to change the subject away from the hard issues.

What a load'o'crap. The person here that "change[s] the subject" is the Master of Reframing, "Bart", who introduces enough "straw men" to supply a cavalry division, and poses 'questions' that assumes teh answer he wants.

WHenever he gets hit with "hard" responses, he ignores them and "moves on".

Or, latest and most ignomiously, chides Dilan, for actually bringing some -- like, you know, law -- into the discussion, for being a "jerk".

No, we know who the jerk is.

Cheers,

# posted by

Arne Langsetmo : 11:40 AM

Somebody needs to engage brain before stepping on his mouth:

[Enlightened Layperson]: And if that argument does not convince you, consider this. There is an excellent, purely pragmatic reason to make captivity more physically pleasant than combat. If captivity is no improvement over combat, why would anyone ever surrender?

["Bart"]: To avoid being killed or wounded, which is far worse than anything in the CIA coercive interrogation program.

The question was whether, if continued fighting including the risk of being killed or wounded was a better alternative to being captured and tortured, people would want to surrender.

And even if that's not a black-and-white, rational and obvious decision that every enemy would automatically make, if there's an increased probability the enemy will surrender if you treat them well, that's a point in favour of doing so.

Cheers,

# posted by

Arne Langsetmo : 11:46 AM

And even if that's not a black-and-white, rational and obvious decision that every enemy would automatically make, if there's an increased probability the enemy will surrender if you treat them well, that's a point in favour of doing so.

Cheers,

# posted by Arne Langsetmo : 11:46 AM

~~~~~~~~~~~

exactly arne .. otherwise "desperate men will do desperate things " ..

left unsaid in that old saw is: "only desperate men should do despertate things ..."

# posted by

Jkat : 12:03 PM

"Bart" DePalma loves to tell others what they think:

Indeed, I would contend that being hunted down on the battlefield by a military which you cannot seem to stop no matter what you do is terror/mental pain far in excess of the CIA interrogation program.

I guess any detainee should just count their lucky stars and kwittheirbitchin'; "Bart" sez it's for their own good....

"Bart"'s dissembling for the maladministration's torture has devolved from satire into farce.

I wonder what Osama bin Laden would say, though....

Cheers,

# posted by

Arne Langsetmo : 3:10 PM

Some guy talking out of his bottom orifice emitted this:

The wide publicity of the CIA interrogation program and the far worse actual war crimes at Bagram and Abu Ghraib has not stopped al Qaeda from surrendering around the world in the thousands.

Cite for this "fact"?

Oh, right. Nevermind. Forgot who was "talking" at us here....

Cheers,

# posted by

Arne Langsetmo : 3:15 PM

Ignoring for now the drivel emanating from Bart, the loon from the wilderness, it seems to me that one poster, jkat, made a very significant contribution on this thread. I paraphrase:-

“1. War is a dehumanizing experience for all those exposed to its evils. There is no need to make it any more brutal than it already is by allowing anything which approaches mistreatment of surrendered/captured combatants held in custody.

2. There is a duty to be humane captors regardless of the tactics or the nature of the specific enemy we engage.

3. Torture and inhumane treatment sully the national honour.”

4. The USA need to revert to the position “pre-Bush” and apply proper standards.”

The GW Bush Administration may have been the most flagrant advocate of the proposition that “the rules of international law are for other nations”, but the process did not begin under Bush – it first flourished under the late President Reagan and was pretty flagrant then.

Those of you who did Classics may be familiar with the “Res Gestae Divi Augustus” of which the only surviving copy was found at the Temple of Augustus in Ankara, the capital of modern Turkey. It is believed the original was inscribed on 6 tables on bronze pillars in front of the Mausoleum of Augustus in Rome. Many an English schoolboy (including me) has struggled to translate passages from it. Fortunately there are many cribs available one of which is to be found today at the Internet Classics Archive maintained at MIT (http://classics.mit.edu/index.html).

There was much hagiography of Reagan at the time of his funeral. I toyed with a modern version of the Res Gestae for Reagan and I offer it hear as a reminder of just what went on under Reagan.

The Res Gestae of Ronald Wilson Reagan, 40th President of the United States of America

"1. In my 26th year, I became a film actor making 53 files over a 20-year film career. In World War II, I served my country in Hollywood with the US Army and Army Air Force making over 400 training films for the Army Air Force and leaving active service with the rank of Captain.

2. After World War II, my fellow screen actors elected me to the presidency of the Screen Actors' Guild entrusting me with the defence of the members' interests. Those I considered to be my enemies because of their political views, I drove into exile by my testimony as a friendly witness on 23rd October 1947 before the House Un-American Activities Committee.

3. Although in 1950 I campaigned for the California Democratic candidate in her race against Richard Nixon for the US Senate, in 1952 and 1956 I supported the Republican candidate for the presidency leading a movement known as "Democrats for Eisenhower".

4. In 1954 I was hired as a propagandist by the mega enterprise, General Electric Corporation, for whom I hosted television shows and much else. My training at GEC honed my communications skills and in 1960 I once more worked to seduce Democrats from allegiance to their party's candidate by campaigning under the label of "Democrats for Nixon".

5. My time with GEC gave me an important understanding of how business operates. GEC fired me because I had in error criticised the Tennessee Valley Authority whose commercial favour GEC wished to have. Understanding that the business of America is business and that the political process cannot function without the gold of the corporations, in the same year I switched my formal political allegiance to the Republican Party.

6. In 1964 I gave my final film performance in "The Killers", in which for the first and only time in motion pictures, I played the bad guy. I then turned to full-time bad guy work as co-chair of California Republicans for Senator Goldwater. In my speech - A time for Choosing - I attacked the wicked Lyndon Johnson's Great Society programme which sought to give unnecessary wealth to the poor and deprived plebeians by means of the monstrous expedient of taxing the wealth of the corporations and the rich citizens. My speech served to to convince many right-wing millionaires that I had the communications skills to "sell" Neoconservatism to the American plebs.

7. With the financial support of my rich business friends I ran for the office of Governor of California and was accorded the victor's laurels by the voters of that state. Upon assuming office in 1967, I rewarded my business friends by imposing on the state a 10% reduction in expenditure thus reducing the ability of the impoverished to obtain luxuries such as mental health care and education which were unnecessary for their station in life.

8. The people of California rewarded me in 1970 by re-electing me as Governor of their state. In my second consulate, I removed 300,000 plebeians from the public dole. However, I was unable cut taxes and was forced to impose on Californians the largest tax increase any state had ever demanded in American history.

9. I was loyal to President Nixon, only admitting that he had deceived the American people on 6th August 1974 three days before he resigned to avoid the indignity of impeachment for his high crimes and misdemeanours. I refused office under Gerald Ford because I thought him too liberal and I challenged him for the Republican nomination in 1976 but was defeated.

10. In the 1980 presidential race I vied with the incumbent President, one Jimmy Carter, who had not learned the lesson that morality is a luxury that presidents cannot afford. My friends rewarded me with $10.6 million of "independent" contributions to the campaign while my opponent received only an inconsequential $28,000. The American plebs rewarded me with their trust and I was sworn into office on 20th January 1981 as the 40th President of the United States of America.

11. Despite an inherited Federal deficit of $100 billion I launched a programme of tax cuts for the rich and of cuts in welfare and social programmes for the poor which created a new underclass of severely disadvantaged people in American Society. At first I had difficulty in getting my plans through Congress but I was helped by a failed assassination attempt. During my two terms in office I managed to almost triple the Federal Deficit. Thanks to my fiscal policies, by 1st November 1982, I succeeded in putting nearly 9 million Americans out of work, the highest number since the Great Depression. By 1st January 1983 I had caused the jobless total to reach the new height of 11.5 millions.

12. On 8th March 1983, I delivered my great Evil Empire speech before a gathering of so-called evangelical Christians. Considering that such people claim to follow the misguided teachings of some nonentity or other from far off Judea, whom it appears they call by the ludicrous title of "Prince of Peace", my oration was received surprisingly well. It is of course the great state contracts for weapons which enable the corporations to make profits and therefore my Strategic Defense Initiative, which the plebs called "Star Wars", was very well received by the merchants, although foolish scientists claimed that no workable weapon was capable of deployment.

13. In August 1982, I sent US Marines to Lebanon to keep peace between warring Lebanese factions, but on 23rd October 1983, 241 US Marines were killed by a suicide bomber. O Varus, give me back my legions !

14. I gave enthusiastic support to many generals and military leaders from the lands of Latin America, among them the generals of Argentina and El Salvador, General Pinochet of Chile, General Montt of Guatemala and the Contras of Nicaragua. All these valiant warriors were fighting foolish governments elected by ignorant people infected with the democratic virus. With my support and the weapons I supplied, the warriors were able to slay thousands and, wondrous to behold, made many of their people simply disappear.

15. Notwithstanding the legal prohibition on the funding actions in support of the Nicaraguan Contras which some foolish senators and representatives of the plebs in the Congress enacted by the ludicrous Boland Amendment to the War Powers Act, I continued to give the Contras my support. In my State of the Union Address of 9th May 1983, I sought the support of Congress against the lawfully elected Sandinista government and described the Nicaraguan Contras as "freedom fighters". In that speech I also announced support for the Mujahhidin in Afghanistan. When Congress did not support my plans for Nicaragua, I caused my spies to arrange clandestine funding of the Contra's heroic efforts, inter alia, by the secret sale of weapons to Iran.

16. In pursuit of my crusade against communism, I did not hesitate to overthrow foreign governments. On 25th October 1983 I invaded the sovereign state of Grenada and subdued its foolish leaders, an act regrettably declared to have been an unlawful aggression by the UN General Assembly. I was forced to use my supreme authority to veto a similar foolish resolution in the UN Security Council.

17. The arrangements I made for my spies to conduct covert actions in support of the Iran Contras later caused the United States of America to be found to have acted unlawfully by the International Court of Justice in the Hague. Fortunately, these judges have no armies at their disposal and I was able to treat their judgment with contempt.

18. In December 1983 I sent a certain Donald Rumsfeld as my envoy to repair relations with Saddam Hussein the dictator of Iraq and provide him with assistance and support in his battles against the wicked Iranians. I later approved the sale of "dual use" equipment to him which unfortunately he used to gas some Kurdish barbarians who apparently did not appreciate the benefits of Iraqi citizenship. But thus it was that I benefited our great merchants by arranging the sale of arms to both sides in the Iran-Iraq war.

19. In 1984 I reviewed the Kirkpatrick Doctrine of my UN Ambassador to the United Nations Jeane Kirkpatrick. The stupid woman had attempted to justify my support for Third World dictatorships with bad human rights records with a philosophy based on the dubious proposition that the communist states which the United States opposed were "totalitarian" regimes while the third-world dictatorships which the United States supported were but "authoritarian" ones. I have never liked logomachy. The Kirkpatrick doctrine was strongly criticised by some ignorant liberals among the senators because it involved a little bloodshed, perhaps quite a lot, and even though my dictator allies were, for quite moderate pension contributions, creating a favourable climate for US corporations to do much lucrative trade with the countries they controlled. In a stroke of genius I was inspired to reformulate Kirkpatrick's babblings as the Reagan Doctrine, which stated that the USA would henceforward support any anti-communist insurgency. By this means the state could still support right-wing dictatorships and more generally any insurgents against any government I disliked. It was sufficient to decree that my enemies were communists.

20. On 11th August 1984, I mistakenly quipped into a microphone that I thought was off air, "My fellow Americans, I am pleased to tell you today that I’ve signed legislation that will outlaw Russia forever. We begin bombing in five minutes".A few liberals were unhappy but I received a surprising number of missives supporting the concept.

21. On 4th November 1984 and in my 73rd year the American plebs rewarded me with supreme power for a further 4 years. At the election I received 59% of the popular vote, 49 states and 525 electoral college votes. My forlorn opponent Walter "Fritz" Mondale was supported by only one insignificant state with miserable 10 electoral college votes. Geriatrics can still rule.

22. The Reagan doctrine enabled me on 27 March 1985 to sign off on National Security Directive 166 authorising assistance to the Mujahiddin in Afghanistan which seemed like a good idea at the time. If these barbarians had succeeded in killing off all the Russian soldiers from the evil empire we would have rejoiced and we should find it easy to exterminate them later should they prove troublesome.

23. Throughout my presidency I was careful to ignore the AIDS epidemic which is actually beneficial since it attacks persons who indulge in unnatural vice. Unfortunately in October 1985 I was compelled to announce that I would make AIDS research a priority when some lovesick matrons learned that a certain faggot named Rock Hudson had died of the disease. I 'prioritised' the research by cutting funding for it.

24. I authorised the bombing of Tripoli and Benghazi in April 1986 in retaliation for the bombing of a disco in Berlin where a US serviceman was killed. These rag-heads need to be taught lessons in a manner they understand and slaughter of their women and children from the air is always effective. I learned that from Saddam Hussein.

25. On 25th November 1986, my Attorney General was forced to admit that between $10-30 million earned from illegal arms sales to Iran had been equally illegally diverted to aid the Contras. Since impeachment seemed a distinct possibility, I appointed a Commission with orders to review matters as slowly as possible. When I was compelled to testify to the Tower Commission I was unfortunately suffering from Amnesia and was unable to assist them in clarifying the role of my underlings. On 26th February 1987, the Tower Commission Report was delivered to me. I arranged for it to be printed and sold by Bantam Books. It concluded that, "confused and unaware", I allowed myself to be misled by dishonest staff members who organized the trade of arms to Iran for hostages held in Lebanon and pursued a secret war against the Nicaraguan government. The report charged that I had failed to "insist upon accountability & performance review" allowing the National Security Council process to collapse. The impertinence of these people. Unfortunately for my enemies I could still appeal to the American plebs. A model defence to executive branch wrongdoing is set out in my 1987 Iran Contra speech which should serve as a useful example for my Republican successors. What little is in the public domain about Iran Contra is now documented in the Walsh Report.

26. On 19th December 1986 my enemy Lawrence Walsh was appointed independent counsel to investigate Iran Contra.

27. In my Brandenberg Gate speech of 12th November 1987, I make a bid for the credit for détente with the Soviet Union. My words: "General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate! Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall!" went down well with my ever credulous sheeple. After all it was only two years since my spiritual guide Margaret Thatcher had told me after she had met Dear Gorby in 1985 that he was a man we could do business with. How wise dear Margaret is and such a comfort to me and unlike my devoted Nancy, she has no truck with astrologers.

28. On 8th December 1987, Gorbachev and I signed the INF treaty, which only eliminated 4% of the our nuclear arsenals but it was the first U.S.-Soviet treaty to provide for destruction of nuclear weapons and to provide for on-site monitoring of the destruction. Leading conservatives were critical of the treaty, but I think it was a good idea.

29. My good friends Oliver North, John Poindexter, and two others were indicted by a federal grand jury on 16th March 1988 on charges of conspiring to defraud the U.S. government by secretly providing funds and supplies to the Contra rebels fighting the government of Nicaragua. These ignorant lawyers simply do not understand that we must support our allies. Fortunately, documents can be classified and presidential pardons can be procured.

30. On 31st May 1988 I did my question and answer bit at Moscow State University beneath gigantic bust of Lenin. "We do not know what the conclusion will be of this journey, but we’re hopeful that the promise of reform will be fulfilled. In this Moscow spring, this May 1988, we may be allowed that hope: that freedom, like the fresh green sapling planted over Tolstoy’s grave, will blossom forth at last in the rich fertile soil of your people and culture." I forget who Tolstoy was. Certainly I remember no ally of that name.

31. I did my bit of campaigning for George Bush Senior. I did not consider he would long survive as President since he was too much the gentleman, but he was my faithful deputy and in any event I needed him to grant some presidential pardons after the inauguration. The plebs duly elected him as my successor on 8th November 1988 and he delivered the pardons I had sought.

32. On 11th January 1989, I delivered my Farewell Speech to the American people from the White House.

33. On 5th November 1994, I informed my loyal subjects that my amnesia had in fact been diagnosed as Alzheimer's disease and that I was withdrawing completely from public life. It appears my memories will gradually fade to nothing so at least no-one else will be able to ask me any more impertinent questions. This was my 83rd year."

I suggest that the rot set in under Reagan and has really continued since. It is going to be a monumental task to undo the legacy and, indeed, to explode the Regan/Bush myths.

# posted by

Mourad : 8:12 PM

I could care less if the United States is not popular in the Arab street. War is not a popularity contest.

This one jumped out at me. Makes me think of the folks who wrote about "a decent respect for the opinions of mankind."

Also makes me think of the US soldier who said of a detainee [paraphrasing] "if he didn't hate us before, he hates us now."

Also makes me think of Bart's "zero tolerance for racism" policy. That meshes well with utter indifference for what those ragheads think of us after we've blown their neighbors and relatives to bits. You know, in a war that was DO OR DIE, that we had NO CHOICE but to fight, against a regime that did not attack us...

# posted by

mattski : 8:46 PM

Bart wrote:

“I could care less if the United States is not popular in the Arab street. War is not a popularity contest. Rather, the goal of our military counter offensive against Islamic fascism was to destroy the Jihadis and to make them too unpopular to function as an insurgency. As my above linked posts demonstrate, we have largely achieved this goal in the past few years rather than the 50-100 you forecast.”

Bart’s assertion that the USA has achieved anything at all in its “global war on terror” is easy to make from his nice little wilderness of Woodland Park. I doubt there are too many Mosques in the area. Living as I do in a Borough of London where a very significant part of the population is Muslim, I see things rather differently.

Sayyed Qutb, the apologist for terror whose writing inspired Bin Laden was executed in 1966 but his thought and teaching lives on, continues to be read and emulated 40 years on.

The struggle against terrorism - which I very much support - has of necessity to tackle the ideology. Just as the burning of heretics did not stop the spread of the ideas of the Reformation, neither will military or police repression wipe out this ideology which puts us all at risk.

There are still many smallish groups of Muslims around the world who have read the writings of Qutb and writings of others derived from his thought. They gather in small groups, often around a preacher or an activist who expounds salafist or intégriste theology to anyone who will listen. Vulnerable young people are persuaded to seek out opportunities for "jihad" and they are encouraged travel to places, such as the tribal areas of Pakistan, where they can be further indoctrinated. This happens with young Muslims in the UK as recent events have shown.

Terrorist groups are by and large auto-cephalous. The idea of a single leadership sitting spider-like in the caves of Afghanistan (or more probably Pakistan) actually carrying out "command and control" functions is a picture which it may suit US proponents of the so-called "war on terror" to paint, but it is certainly false. What one does have is a sort of "old boys network". The survivors of the struggle against the Soviets in Afghanistan (fomented by the Reagan Administration) got to know each other in the training camps and in the fields. They came from many different countries and the survivors took the ideology home with them. They keep in touch with "old comrades".

More importantly, when a skilled propagandist, such as Bin Laden, makes a pronouncement, it will be studied on the internet by sympathisers, who may have never have met him or anyone connected with him, but who will seek to emulate him. That is why the so-called "war on terror" cannot be won by the military means advocated by the USA. The capture or killing of a particular leader or "emir" achieves very little because the thoughts and the ideology live on. Indeed the deceased may come to be regarded as a martyr.

This is a secular struggle which has to be won by exhibiting our values, practising what we preach and by development aid for education. If a 10th of the military aid given to Pakistan by successive US Administrations had been diverted instead to the development of a proper public school system and the elimination of the madrassas where the Qutb ideology is expounded by the ignorant to the ignorant, that would have been a major achievement.

The “Bush Global War on Terror” for which Bart advocates is most certainly not a popularity contest. If it were, the USA has lost it. These are the results of a poll in 4 Muslim countries conducted for the World Public Opinion project of the University of Maryland (http://www.worldpublicopinion.org) and discussed on their web site today 28th May 2008:-

‘An in-depth poll of four major Muslim countries has found that in all of them large majorities believe that undermining Islam is a key goal of US foreign policy. Most want US military forces out of the Middle East and many approve of attacks on US troops there…Most respondents have mixed feelings about al Qaeda. Large majorities agree with many of its goals, but believe that terrorist attacks on civilians are contrary to Islam…

Large majorities across all four countries believe the United States seeks to “weaken and divide the Islamic world.” On average 79 percent say they perceive this as a US goal, ranging from 73 percent in Indonesia and Pakistan to 92 percent in Egypt. Equally large numbers perceive that the United States is trying to maintain “control over the oil resources of the Middle East” (average 79%). Strong majorities (average 64%) even believe it is a US goal to “spread Christianity in the region.”

“While US leaders may frame the conflict as a war on terrorism, people in the Islamic world clearly perceive the US as being at war with Islam,” said Steven Kull, editor of WorldPublicOpinion.org.
Consistent with this concern, large majorities in all countries (average 74%) support the goal of getting the United States to “remove its bases and military forces from all Islamic countries,” ranging from 64 percent in Indonesia to 92 percent in Egypt.

Substantial numbers also favor attacks on US troops in Iraq, Afghanistan, and in the Persian Gulf. Across the four countries polled approximately half support such attacks in each location, while three in ten are opposed. But there is substantial variation between countries: Support is strongest in Egypt, where at least eight in ten approve of attacking US troops in the region. A majority of Moroccans also support targeting US forces, whether stationed in the Persian Gulf (52%) or fighting in Iraq (68%). Pakistanis are divided about attacks on the American military—many do not answer or express mixed feelings—while Indonesians oppose them. ...

Most significantly, large majorities approve of many of al Qaeda’s principal goals. Large majorities in all countries (average 70 percent or higher) support such goals as: “stand up to Americans and affirm the dignity of the Islamic people,” “push the US to remove its bases and its military forces from all Islamic countries,” and “pressure the United States to not favor Israel.”

Can anyone think of a better propaganda tool than the message that the USA does not adhere to the values it preaches. That its government employs means such as torture, inhuman and degrading treatment, arbitrary arrest and detention without trial, illegal invasions, bombings of civilian populations. That it regards Muslims as inferior people. That its soldiery uses the Holy Koran for target practice.

The perceptions of the USA are by now so well rooted among the younger generation that I do seriously fear that that the rehabilitation of the perception of the USA in the Muslim world is going to take a generation or two to accomplish. Is is a sad decline from JFK as a hero in North African and the Middle East. But, as in all walks of life, one's good name can be lost quite quickly, but rehabilitation invariably takes much longer.

A step in the right direction would be "No Torture - No Exceptions - to which I would add No Guantanamo Bay and No Military Tribunals.

# posted by

Mourad : 7:16 AM

"But FWIW, if you're too damn cheap for Lexis/Westlaw, you can try the Southern District of Florida's site; however, it seems to be down for maintenance for the duration of the Memorial Day weekend. But I had no problems finding links to Emmanuel (albeit paid subscriptions ones through SSRN). Guess you'll have to wait until Monday....

Cheers,

"# posted by Arne Langsetmo : 12:47 AM"

It cand probably be found -- for free -- on findlaw.com.

Or a Google search on the case citation would doubtless get numerous hits, including, probably, Cornell.

Barfer isn't looking because Barfer doesn't want to know. He simply wants to continue being a good little water-carrier for the Bushit criminal enterpirse, which is down to 23 per cent of support by dead-enders who love power and hate any and all truth which challegens that power -- especially when the possession and exercising of that power is illegitimate to begin with.

Barfer is, in a ward, anti-American. And proud of it. He hates this country with the passion of a statistically insignifiant minority of hateful whiners who demand that the world pretend they are mainstream, instead of being that they obviously are: thugs -- and that's the polite term for them.

# posted by

JNagarya : 9:47 PM