Balkinization  

Friday, January 16, 2009

Calling Torture By Its Proper Name

Sandy Levinson

A major story in the Wednesday Washington Post detailed an interview that Bob Woodward had with Judge Susan Crawford, the chief gatekeeper (and former counsel to the Army during the Reagan Administration and member of the United States Court of Appeals for the Armed Forces between 2001-2006) regarding prosecutions at Guantanamo. She indicated her belief that "torture" had been used against Mohammed al-Qahtani, the alleged potential "20th-hijacker," and, therefore, that he could not properly be tried. I have offered some comments about the story at The Guardian's website.

There are many things that make the interview extremely important, including Crawford's own identity as a "lifelong Republican" who has obviously worked many years within the Pentagon and its environs. But consider especially the following two paragraphs:

"The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

What is crucial is that she recognizes the misleading nature of debates about torture that focus only on one-off occurrences (including, for that matter, waterboarding). Instead, she argues, altogether correctly, that the occurrences of lots of by-stipulation "permitted" actions can add up, in the minds of any civilized observer, to "torture." Thus the second key paragraph:

"For 160 days his only contact was with the interrogators," said Crawford, who personally reviewed Qahtani's interrogation records and other military documents. "Forty-eight of 54 consecutive days of 18-to-20-hour interrogations. Standing naked in front of a female agent. Subject to strip searches. And insults to his mother and sister."


She is obviously not arguing that "insults to his mother and sister," standing alone, would constitute "torture," even though it clearly violates any prohibition against "cruel, inhumane, and degrading" treatment. But, taken together with everything else she notes, including the frequency of sleep-deprivation and the lack of any human contact with anyone else but his interrogators, it is surely "torture." One might think this relatively clear.

But the legal affairs editor of the National Review, Andrew McCarthy, begs to disagree. Thus, he has written in the New York Times that

Ms. Crawford’s conclusion is another instance of the military getting it wrong. Isolation and temperature variations of the type we are talking about here are not torture. To contend otherwise is to trivialize something that is truly heinous. It may be politically correct, but it is wrong. American law has always maintained a bright line between the egregious pain and suffering caused by actual torture and other forms of abusive conduct. Ms. Crawford’s suggestion that abusive conduct that has a “medical impact” meets the “legal definition of torture” is preposterous.


To put it bluntly, this is an example of moral idiocy. My objection is not that Mr. McCarthy, a former federal prosecutor, might believe that torture is sometimes necessary to serve national security ends. That is a serious debate, even though I have come to agree that we are far better off with a categorical ban on torture than to allow open exceptions. But people who defend what we did to Mr. Qahtani should have the intellectual and moral integrity to call it by its rightful name. It is that test that Mr. McCarthy fails in every conceivable way.

Comments:

Let us compare the definition of torture in 18 US 2340:

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

(2) “severe mental pain or suffering” means the
prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

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

(C) the threat of imminent death; or

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


With Crawford's basis for her personal belief that al-Qahtani was "tortured:"

"The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Crawford makes no allegation, and the long disclosed evidence from the interrogation logs in this case do not indicate, that al-Qahtani was ever placed in severe physical or mental pain or anything close. Rather, al-Qahtani was a tough prisoner who was worn down over a period of months.

Interrogation which Crawford deems to be "abusive" and "coercive" is not "torture." Rather, Crawford appears to be confusing the Geneva Convention POW privilege to not be coercively interrogated with the law of torture. al-Qahtani does not qualify for the GC POW privileges, only for the far more limited rights granted by the torture statute.

The one serious charge that Crawford offers is that the interrogation had a medical impact on the terrorist. What is not mentioned is that al-Qahtani was under constant medical supervision and interrogation was halted when it appeared to be medically impacting him, such as when his heart rate started falling.

Consequently, Crawford is offering her personal opinion and not a legal opinion based upon the torture statute.
 

Crawford makes no allegation, and the long disclosed evidence from the interrogation logs in this case do not indicate, that al-Qahtani was ever placed in severe physical or mental pain or anything close.

You little shit.

From the log kept by Qahtani's torturers:

Emotional problems. Began to cry. Very annoyed. Urinated on himself. Began to cry. Began to cry. Complained of being dizzy. Very angry. Began to cry. Pains in kidneys. Incoherent. Broke down crying. Asked God for forgiveness. Cried. Cried. Became violent. Began to cry. Broke down and cried. Began to pray and openly cried. Began to cry. Began to cry and sob out loud. Cried quietly under the towel. Began to cry and sob loudly. Appeared to be crying. Cried out to Allah several times. Trembled uncontrollably. Yelled. Cold. Said death had been entering his mind. Broke out in tears. Cried for half an hour. Began to cry. Tried to cry again. Crying. Began to cry when talking.

(Philippe Sands, Torture Team at 171.)

From the article:

The interrogation, portions of which have been previously described by other news organizations, including The Washington Post, was so intense that Qahtani had to be hospitalized twice at Guantanamo with bradycardia, a condition in which the heart rate falls below 60 beats a minute and which in extreme cases can lead to heart failure and death. At one point Qahtani's heart rate dropped to 35 beats per minute, the record shows.

The torture act:

other procedures calculated to disrupt profoundly the senses or the personality

"An example of moral idiocy," as Prof. Levinson calls it. Or, more bluntly: You little shit.
 

Seconded.

Shoo, fly. Go find some nice ordure and lay your eggs.
 

Anderson:

Is the Army being mean to the poor wittle terrorist and making him cry and piss his pants? Give me a frigging break. A skilled police interrogator following standard civilian police interrogation guidelines could make you cry and piss your pants - probably in short order. The fact that al-Qahtani cried and asked Allah for strength to resist the interrogation of the infidel enemy is hardly evidence that his military interrogators subjected him to severe pain.

Ceasing interrogation when the prisoner starts to experience medical problems and providing medical treatment is what the law of war requires. The fact that you hold that against the military is frankly disgusting. There is no proof that the terrorist's heartbeat decreased due to the imposition of severe pain. Nor is there any indication that the military continued or repeated the form of interrogation that preceded the terrorist's heartbeat to decrease. The logs do not show a second treatment for this malady.
 

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

jpk:

So are you arguing that we should cease interrogation and free all al Qaeda terrorists because you or I personally would not want to be interrogated or detained?

Please.
 

Ceasing interrogation when the prisoner starts to experience medical problems and providing medical treatment is what the law of war requires. The fact that you hold that against the military is frankly disgusting.

Right ... that's what I held against them, *ceasing* the interrogation.

Bart is indistinguishable from the Stalin apologists who drove Orwell up the wall.
 

My objection is not that Mr. McCarthy, a former federal prosecutor, might believe that torture is sometimes necessary to serve national security ends. That is a serious debate

No, no it's not.
 

It is good to hear torture called torture. That's what it is.

"Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements." George Orwell, Politics and the English Language, 1946.

Orwell's essay remains sadly relevant. Today, euphemisms like enhanced interrogation techniques and aggressive interrogation methods drip off the lips of torture defenders. Orwell points out that such soft language is used for "the defense of the indefensible".
 

[LSR-Speak]: [I]nterrogation was halted when it appeared to be medically impacting him, such as when his heart rate started falling.

"Stop it! You're killing him!!!"

Apparently "Bart" thinks it's not torture as long as you stop short (and a sad but understandable and forgivable mistake in the few instances, a couple dozen, where they cut it just a tad too fine....)

Cheers,
 

Baghdad, I know I've said this before, but this seems like a good time to repeat it. You would have been an excellent Nazi.
 

Ceasing interrogation when the prisoner starts to experience medical problems and providing medical treatment is what the law of war requires

Actually, I'm pretty sure that the law of war requires that you don't do anything to prisoners that causes them to experience medical problems.
 

I don't think I ever got an answer to what puzzles me. The MCA tried to gut the War Crimes Act by importing the Bart-friendly definition of torture from the Torture Act and requiring that Common Article 3 be interpreted in that way ... but ONLY Common Article 3.

However, the WCA also prohibits "any conduct defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949."

Article 147, GC4:

"Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health ..."

Okay -- torture and "great suffering" are grave breaches, and their definition isn't restricted by the WCA. Art. 147 is defining conduct that parties must legislate against -- which we of course failed to do properly in the Torture Act -- but still, the WCA says "defined as a grave breach," and had Congress "wanted" to extend the CA3 definition to every mention of "torture" or "suffering" in the Conventions, it could have done so.
 

Mr. DePalma's remarkable taste for torture has already been documented. The horror of potential terrorism far outstrips any compulsion to proper treatment his conscience might otherwise dictate due to the evidence at hand. His ability to reason in this matter is impaired, as his post-9/11 logic has been reborn in the baptismal fonts of fear and reaction.
 

It seems like a big oversight to elide non-torture when the requirement for "pain on the level of organ failure or death" is so laughable on its face. What causes pain on the level of organ failure or death *besides* organ failure or death themselves? Even if not, I'm sure it would qualify as "great suffering." Truly a Big Lie is occurring here.

The (non-)definition of torture expoused by DePalma, Cheney, Rumsfeld, and the other political intellectuals among us depends on death. They tell us that it's not torture unless the suspect dies.
 

Mark Field:

I think what Professor Levinson was trying to say is that the real debate between the left and right over this issue is a debate over whether we should torture detainees or not. McCarthy thinks we should. Bart thinks we should. (Note his post about the "poor whittle terrorist".) These guys' objection isn't that they don't think severe pain was really inflicted. Its that they think it is justified to inflict severe pain, because these guys are terrorists and deserve it. (Perhaps, as well, to get information, but really because these guys are terrorists and deserve it.)

So what Professor Levinson is sayng is have the courage of your convictions. It's clear that these guys want to torture terrorists, so why spend so much time making such transparently phony arguments claiming that they don't?
 

these guys want to torture terrorists

These guys know that most of the prisoners at Guantanamo, Bagram, and the secret prisons are not terrorists, but are innocent people who were picked up or turned over for being in the wrong place at the wrong time. These guys may not "want," in a subjective emotional sense, to torture innocent people, but they might as well want that, because they want to deny these innocent people due process and are willing to have them tortured.

Also, note that I used the word "prisoners," not "detainees." One gets "detained" at a traffic stop; one does not get "detained" for seven years (in mostly solitary confinement, which, because it drives people mad, itself constitutes torture). Now that we can call torture "torture," let's drop the "detainee" euphemism too.
 

bart

are the things that were done to Qhatani ok because, in your mind, he's already guilty or because these are legitimage techniques for interrogation? that is to say, it would be ok for these things to have been done to an innocent person
 

In other news, Sandy Levinson looks absolutely nothing like the mental picture I had of him before seeing the tiny contributor photo on the Guardian's webpage.

I apparently suck at guessing what people look like based on what they write.
 

I apparently suck at guessing what people look like based on what they write.

Oh man, I am the *worst* at that.

Of course, my stunning resemblance to a youthful hybrid of Harrison Ford and Cary Grant probably doesn't convey well in print, either.
 

Dilan: I think you're stretching a charitable reading of Sandy's comment too far. He wrote: My objection is not that Mr. McCarthy, a former federal prosecutor, might believe that torture is sometimes necessary to serve national security ends. That is a serious debate, even though I have come to agree that we are far better off with a categorical ban on torture than to allow open exceptions. The "serious" question, according to Sandy, is whether "torture is sometimes necessary to serve national security ends." Sandy has "come to agree" with one side of it, but the debate itself is a "serious" one. The natural reading of "serious" in that context is "demanding careful consideration."

Mark Field's response is precisely correct. We need to stop agreeing to the premise that it's an open question, or that reasonable people can disagree. We need to resist every hint of it, else people like John Yoo gain legitimacy and is just another honored colleague law professor engaged in the time-honored test of ideas. There are limits to rational discourse, beyond which the discussion itself erodes our humanity. That is why Mark Field was precisely correct.

Anderson: On the contrary, sir...
 

(a minor aside on Obama administration and torture)

The issue of US torturing people in its prisons disappeared from the front pages of most newspapers, Foreigners do not fume about it as much as they used to, much worse pictures remain unreleased thanks to efforts of our alitolized federal judiciary, etc, etc.
So yes it is extremely tempting to pretend nothing needs to be done here. But that would be wrong because despite of our wishful thinking the issue remains permanently etched into the minds of people all over the world and they will be watching the new administration extremely carefully.

Think the FBI, those people never made a clean break with their ugly Hooverian/Stasi past (MLK, red scares, Cointelpro, more recently terrorizing/destroying innocent citizens like Mayfield, Hatfill, etc), and the consequence of that is that their current campaign to position themselves as perfectly clean has no chance of succeeding, people will think FBI people will think Hoover, MLK, Cointelpro, reckless hounding of innocent people, etc.

The only solution in cases like this is to make a clean break with the ugly past which in this case means being as decisive as possible in separating this administration from that of Cheney, Bush, Yoo, Gonzo and Mukasey. Otherwise this country will be forever thought of as a country of torturers, sort of like Syria of the western world.

So Obama administration needs to be here as vocal, as unequivocal as possible.

---

Prosecuting those people is an entirely different matter.
 

Dilan:

therandomthinkery got my point pretty well. Just to elaborate, I understood Prof. Levinson to identify 2 distinct issues:

1. What is that constitutes torture?

2. Is torture sometimes justified?

In my reading, he was saying that the torture proponents are ducking the second issue by quibbling about the first, and that in doing so they aren't being serious. However, he was granting them a "serious" (if wrong, in his view) argument on the second issue. I do object to that latter grant. IMO, there's no "serious" argument in favor of torture "to serve national security ends" (or, for that matter, any other reason), just as there's no "serious" argument in favor of rape "to serve national security ends" (or, for that matter, any other reason).
 

Well, I guess we have an answer to one question. I believe Anderson once said (in the context of hypothermia) that a minimal definition of torture would include anything that requires a doctor on hand to make sure the subject survives. Bart never answered whether he thought that was a good (for him, maximal) definition of torture.

The answer appears to be no. So long as you stop when the doctor says to, it is not torture. Bart appears to accept the definition that it is only torture if the subject dies (or, I will charitably assume, is maimed for life).
 

I'm pretty sure that Baghdad would not be bothered if they die. If they are in military custody, they had it coming to them.
 

EL:

The definition of torture set by statute. The statute forbids the intentional infliction of severe pain, not anything else that might lead to medical care.

A police officer could accuse you of a heinous crime and you could suffer a stroke from a spike in your blood pressure. That does not mean that the police officer tortured you.

The Army can and did order training and operations that put my men and I under equivalent or worse physical rigor than that suffered by your poor widdle terrorist. Many of us required medical care along the way to treat the injuries and illnesses we suffered. We volunteered for this life and the Army was not guilty of torturing us.

This is getting way past ridiculous.

Mohammed al-Qahtani was a member of the 9/11 terrorist cell who immigration actually managed to deny entrance into the US. We had independent evidence in the form of telephone intercepts identifying him as al Qaeda. al-Qahtani was a terrorist who dedicated himself to the mass murder of Americans.

I have no personal sympathy whatsoever for this human predator and would not extend him a single mercy not expressly required by law. My only concern is whether the military committed statutory torture by inflicting severe pain on al-Qahtani during interrogation. The answer is clearly no.

I could care less whether al-Qahtani cried and pissed his pants like a baby or that his heart rate slowed down. Screw him. al-Qahtani chose his life of terror and is in no position to complain when the life he chose gets rough. I will save my sympathy for the thousands his fellow 9/11 cell members murdered and maimed.
 

A police officer could accuse you of a heinous crime and you could suffer a stroke from a spike in your blood pressure. That does not mean that the police officer tortured you.

It's funny when lawyers confuse proof and evidence. They usually do it when they know they are making a bad argument.

Yes, Bart, that stroke and blood pressure spike isn't PROOF of torture. It could happen for any number of reasons.

On the other hand, such a stroke, ALONG WITH OTHER EVIDENCE SUCH AS MISTREATMENT OF A DETAINEE, could provide EVIDENCE that a person suffered severe pain or physical or mental suffering and thus was tortured. The same way, every day, you put together cases based on pieces of evidence that, alone, wouldn't amount to anything but in conjunction, give rise to inferences and arguments.

Jesus, you know this. You are a practicing lawyer, for God's sake. Why do you insist on embarrassing yourself?
 

It seems like a big oversight to elide non-torture when the requirement for "pain on the level of organ failure or death" is so laughable on its face. What causes pain on the level of organ failure or death *besides* organ failure or death themselves?

The thing that's truly ludicrous about this standard is that lots of organ failures and deaths are entirely painless (at least to the best of our ability to tell).
 

For me what makes this torture and not even a series of sadistic criminal acts is the institutional nature of the acts.

In other words, the "authorization" of the techniques, and the need to get authorization for each application of a technique, give rise an unmeasurable degree of terror in the mind of the detainee.

I can sit through the Jack Bauer torture and hope that this doesn't happen to me, but if it did happen to me, and I survived to the next day, I would at least be able to rationalize that I had been the victim of illegal behavior.

But detainees must exist in a situation were the abuse may never end, and if it ends the abuse may never be recognized as illegal.
 

A great many comments contain expressions of skepticism as to the credibility of assertions by the commenter "Bart DePalma" of being an attorney. Some such expressions have actually gone to the trouble of citing specific passages from comments posted by "Bart DePalma" as so ill-reasoned, misleading, corrupt, self-contradictory, illogical, stupid, or [and sometimes "and"] even 'tortured' [to draft an evocative descriptor] as to render the possibility of their being typed and conveyed by a practicing attorney, or even just by one with a degree from a law school, so highly improbable as to be practically indistinguishable from zero.

I feel it's high time we recognize such reasoning to have been overtaken by reality and serious consideration be given to abandoning it as out of bounds. in support of both propositions I cite reports of associations between the OLC memos released to date that were both produced by a during the outgoing administration on the one hand, and a number of lawyers who continue to be employed in demanding and responsible positions. Included in the ranks of those would be federal judge Jay Bybee, U Cal law prof John Yoo, OVP chief of staff David Addington, and ubiquitous Bushie apologist David Rifkin [the last of whom, indeeds, both speaks and writes in a style and for causes which are at least very often almost indistinguishable from those posted by "Bart DePalma", albeit those of Mr. Rifkin are clearly superior as to scholarship and civility, though in no other way].

In addition to the large number of harsh, but nonetheless, entirely merited critiques of the content of posts by "Bart DePalma, among with the several shortcomings articulated above are but a small percentage, I note that some 'attacks' if you will on "Bart DePalma" are close to if not actually in the nature of being ad hominem [eg. "blood-thirsty", "insensate", "crazed", "moronic", and "Nazi"] .A few of these, I think, also could do with a little re-thinking. I don't mean any those in the list above, mind you; those are all fine, and most if not all quite remarkably restrained - but instead, by way of example: Can it really be stated with any confidence that the person posting under the name "Bart DePalma" is a hom, as distinct from a her?

To the end of clarification, I would not wish that this be taken as, or even implying ccndemnation in the slightest degree, of the tone of any single criticism of or attack on "Bart DePalma" - whether of belittlement, derision or dsimissa - all of which, in contrast, strike me as utterly merited and appropriate. It's just that if 'ol' Baghdad' ends up appearing in a witness box or the prisoner's dock one day, none of us would want to conffess to having egg on our faces for standing on the rock that it's impossible that he's a lawyer.
 

Wait, what? Ol' Dung Fly here is obviously a lawyer. There's a reason there are a million lawyer jokes out there, and that reason isn't that lawyers as a class are smart, fun-loving pranksters.

The reason, alas, is that lawyers as a class are dung flies. No offense, kids, but this is your profession. Embrace it.

Oh, and trollboy?

Shoo, fly.
 

Bart DePalma is exactly who he says he is. His law firm website is here.
 

Bart, a pulse of 35 is considered a life threatening emergency. It's shock, the person will die if not treated. In the case of al Qahtani, it was the result of hypothermia - he was dying of exposure.

Susan Crawford was relying in part for her contention that a combination of techniques put together could constitute torture on previous findings, particularly in England about IRA terrorist treatment.

The Geneva Conventions nowhere says that its only requirement is that you stop an abusive interrogation when there is a medical need. You're just making that one up out of whole cloth.

It doesn't matter what al Qahtani was alleged to have done, and alleged is the operative word. It never matters what the prisoner has done when evaluating torture. Furthermore, law enforcement in the U.S. can interrogate to the point of torture, so what they do or do not do doesn't prove that any technique is or is not torture. Please enlighten us about Jon Bruge if you think otherwise.

Finally, and this isn't directed just at Bart, Susan Crawford's opinion which she related to Bob Woodward, was the basis of a legal decision not to bring al Qahtani to trial under the military commission system. Susan Crawford is the Convening Authority for that system, not just some old high ranking Republican. Under that system, she can quash cases, decide whether or not they can be tried, overturn verdicts, and review decisions made by "lower courts". Her decision that this is torture isn't just a personal opinion, and it certainly isn't, as Bart would opine, some PC uninformed spectator rendering an uninformed judgment. It was a legal decision by a legal authority, regardless of what an abomination the MCA system is.
 

I have no personal sympathy whatsoever for this human predator and would not extend him a single mercy not expressly required by law... I could care less whether al-Qahtani cried and pissed his pants like a baby or that his heart rate slowed down. Screw him.

Let's stipulate, for example, that al-Qahtani has no sympathy whatsoever for you, Bart. And that he could care less whether you cry or piss your pants. In that case the two of you inhabit the same moral universe.

The Army can and did order training and operations that put my men and I under equivalent or worse physical rigor than that suffered by your poor widdle terrorist.

Also, Bart, you continue proving your bona fides as an ignorant, self-contradicting Jackass by arguing both that pain is subjective and cannot be measured--and therefore any torture curb is void for vagueness--AND that the duress experienced by servicemen in combat is equal or greater in magnitude than that inflicted upon the victims of 'enhanced interrogation.' Add to that the abject incoherence of your allegation... even if it were true it wouldn't have any bearing on the legitimacy of torture, except if your view of torture was punitive.

A one-man freak show.
 

I'm puzzled by how much of this blog - the comments - are decoted to arguments between 'Bart' and others. Why, one commenter is even named 'Bartbuster.'

Isn't this a bit odd? I wonder if 'Bart' - homepage notwithstanding - is really ... JACK, cleverly posing as a provocateur to keep people checking in. I think Jack should disclose all.

By the way, Anderson, I was tempted by your self-description and went to check you out. No picture. I'm so disappointed.
 

Bart has his own blog where he spews rightwingnut propaganda. If Jack = Bart, then Jack has some serious issues.
 

Bart:

We understand how tough you are and how much you hate terrorists, yada, yada, yada...

But what you need to do when thinking about things like torture (or the death penalty) is to think about what will happen when, as it inevitably will, an innocent person ends up in the death or torture chamber.

In recent years we have seen over and over and over again, innocent people getting released from Death Row. We know that the majority of those in Guantanamo were turned over by people who had a personal interest in turning them over. In fact we know that many of the prisoners in Guantanamo were innocent.

Your mistake, Bart, is that you're too aggressive -- to the point of being bloodthirsty. You really, really, really want revenge on terrorists. But you don't care if there is collateral damage in the process and that is where you are morally weak and degraded. You do not have the discipline to control your emotions. You allow your desire for revenge to overcome your basic morality.

We have to have procedures in place that really clamp down on the use of torture. And if you have any realistic understanding of the psychology of your average law enforcement type, you know that if you give them an inch they will take a mile. Any little exception you allow will be expanded into a loophole you could drive a truck through. You probably need to overcompensate in the law to get anywhere near the desired result.
 

It was a pleasure to read Professor Levinson's Guardian op-ed - a pleasure only matched these last few days by the pleasure of watching Senator Leahy and Attorney-General Designate Holder discuss torture during Holder's recent confirmation hearing.

The issue is now how the incoming Administration will deal with putting matters right. An Executive Order would be a good start, but insufficient because it appears that executive orders may have classified exceptions to them. The only safe way is the legislative route.

Secondly there is a need to recognise that torture is but the extreme end of a spectrum of prisoner abuse all of which needs to be criminalised and sanctioned. In the UK we have found that it is useful to separate out the chain of command for (i) custody and (ii) interrogation.

That is because there is a conflict of interest between the duty of the person responsible for the custody of the prisoner whose job it is to ensure his rights are respected and the desire of the
interrogator to have access to the prisoner for interrogation purposes.

The "custody officer" has the responsibility of ensuring that the prisoner is kept at the disposal of the law, but also has positive duties relating to the welfare of the prisoner and to ensure his rights are respected, from the most basic of ensuring that the conditions in which he detained are salubrious and that he is fed, has access to sanitary facilities, provided with exercise, has access to medical care, is not subjected to violence, is advised of his rights, is provided with access to a lawyer, consular officials where appropriate etc. In particular it should be the duty of the custody officer, rather than the interrogator, to regulate access to the prisoner for interrogation purposes: when, where, in whose presence, for how long and for what duration of time. Breach of those duties should be a disciplinary and a criminal offence.

The "interrogator" with a view to prosecution must be restrained from using any techniques which can call into question the voluntary nature of the confession. We in the UK have found that a useful restraint is the independent recording by the custody officers of the circumstances of interrogation and another is the requirement that all interviews are tape recorded and a copy provided to the prisoner (dual cassette tape recorders). Here there need to be disciplinary and criminal sanctions but also an exclusionary rule. Confessions must be excluded if not demonstrated to have been voluntarily obtained.

Obviously, where the purpose of the detention and interrogation is not with a view to prosecution, but with a view to intelligence gathering - then the sanction of excluding evidence unlawfully obtained cannot apply. But there is no good reason why all the other restraints on interrogation should not apply.

There is very little on which I see any common ground with the positions advocated by LSR Bart on this blog, but there is one assertion he has made above which I think bears closer examination:-

"Is the Army being mean to the poor wittle terrorist and making him cry and piss his pants? Give me a frigging break. A skilled police interrogator following standard civilian police interrogation guidelines could make you cry and piss your pants - probably in short order"

I have no idea how law enforcement officers behave in the State of Colorado, but if that assertion is correct, which I beg leave to doubt, then there is something very wrong with the "standard civilian police interrogation guidelines" to which LRS Bart refers.

I have little doubt that some US law enforcement officers will on occasions behave in a manner which is very different to what is considered permissible in the UK, just as from time to time, some UK law enforcement officers do. But when the facts come to light, the consequence will be prosecution, disciplinary action and a civil suit for exemplary damages against the police authority.

It is because such behaviour has in the recent past happened that we have brought in the concept of the separate custody officer, the requirement that no juvenile or vulnerable person is to be questioned at all without the presence of a responsible adult, be it a parent or a representative of social services and that a suspect has a right to have a lawyer present for which purpose the local groups of defence solicitors operate a rota scheme of "duty solicitors" who are available on a 24 hour basis. In addition every police authority operates an "independent custody visitor" scheme in which members of the public volunteer to make unannounced visits to police stations to verify the conditions
in which detainees are being held.

The point which follows on from that is that the practice of the armed forces is generally informed by what is the practice in civilian life.

So the conclusion has to be that the treatment many prisoners suffered at Guantanamo Bay, whether mere abuse, assaults, breach of humane detention conditions, inhuman and degrading treatment, or torture, was outside the range of legally permissible treatment.

As Scott Shane writing in the New York Times Remarks on Torture Could Lead to Legal Changes reports, now that there are open statements from credible sources that serious crimes have been committed against persons in military custody it is going to be very difficult for the federal justice system not to commence an investigation both in terms of domestic law duties and in terms of a treaty obligation under the Torture Convention.

The abhorrent views of LSR Bart notwithstanding, I suspect there will be many serving military police officers and distinguished lawyers in the JAG Corps who would be only too ready to take effective steps in a thorough, no holds barred, investigation in the interests of justice, of the honour of the United States and of the services to which they belong
to ascertain what truly happened at Guantanamo Bay and elsewhere in the military system. I do not subscribe to LSR Bart's "few bad apples" theory of the abuses at Abu Ghraib. These systematic patterns of abuse were inspired and directed at the highest levels and, for my part, I would like to see the US authorities offer immunity to all those who actually executed things like "the frequent flyer program" because it would be in the interest of justice to condone the misbehaviour of the small fry in order to get at those who gave the orders.

Keith Franklin makes a valid point. Not the one about suggesting that others on this blog do not know a good deal about LSR Bart. It is known as a fact that LSR has a law degree and is admitted to the bar of the states of Florida and of Colorado where he has a "law office" of sorts. But there are quite a few UK barristers of whom I might say, "he is a barrister but he is no lawyer". In the Inns of Court it was often said of one prominent UK parliamentarian (also a barrister) that he was "good enough to defend a case of careless driving, but not one of dangerous driving" and, so far as LSR Bart is concerned, I have been moved to comment in the past that some of his assertions lead one to
wonder whether he took his examinations by a deputy.

Keith Franklin is right to point out that LSR John Yoo is now "Professor Yoo, a tenured professor at a prominent law school, that LSR Jay Baybee is now "His Honour Judge Bybee" gracing (if that is the right word for it) the Bench of the 9th Circut Court of Appeals, that LSR David Addington (who came across in his congessional testimony as one of the most arrogant bastards I have ever seen give evidence in my 65 years) is still licensed to practise law and that they and others are still occupying positions of honour, power and influence. Even Loathsome Spotted Reptiles benefit from the presumption of innocence. I can only hope they will be called to give an account of themselves in a proper forum.

As for poor dear Bart, he is to be pitied rather than prosecuted. He probably dreamed of becoming a big-time prosecutor, and there he is in a small town one-man law office eking out a pale shadow of any genuine practice of law - DUI cases and small-beer insurance work. His only misdemeanour is the social one of infesting this blog with mutiple comments which serve only to demonstrate that he too is a Loathsome Spotted Reptile. Let's all just thank our lucky stars that we are unlikely ever to come across him in a courtroom or have him as a neighbour.
 

Some here have called for Bart to be banned, complaining that he is a distraction from serious discussion of the issues. I submit that Bart's continued presence here must not be prohibited by the site administrators, as his presence and commentary are an essential aspect of the serious issues that must be disussed.

That is, Bart, a lawyer and former military man, presumably intelligent, a regular American citizen, a respectable member of his community, speaks in favor of torture, he approves of the brutal treatment of men (and boys? and women?) who are restrained and helpless to fend off such treatment. A lawyer, he assumes those imprisoned by us to be "guilty" even while never having been proved so. He assumes this guilt justifies our institutions in whatever brutal treatment they may apply against those we imprison. While it may be self-evident to many here that such is the view of a sociopath or madman, the more frightening reality is that Bart speaks what many in our society believe. As a lawyer, he can present seemingly reasonable arguments supporting torture, and some who might otherwise be troubled but uncertain about such issues might be swayed by such "rational" discussion.

In short, Bart is a visible sympton of a pernicious malignancy in our society and we must hear him out, the better to identify the strain of the malignancy and to innoculate against it. Our mistake is to dismiss "obviously nutty" views as "obviously nutty" and thus ignore them; in such way do these arguments gain hold among greater and greater numbers of people who have not heard the arguments against such evil ideas, and who are deceived into believing such ideas are not evil.

By all means, Bart should be permitted and even encouraged to participate here to the fullest extent. This better prepares those who abhor his dismaying ideas to argue against them--not here, but in the real world where it matters, where such views will be and are being raised by others of our citizens and by those in government. Have we not already seen and heard those in the media arguing a priori that Obama should continue Bush's "harsh interrogation" policies "for our protection," that he will dismantle and prohibit them at risk of our own safety? Bart, in a sense, represents the visible face of a threat greater to us than Osama bin Laden or a hundred bin Ladens. He represents that which will, internally, destroy our republic.
 

Bart DePalma said:

The definition of torture set by statute. The statute forbids the intentional infliction of severe pain, not anything else that might lead to medical care.

A police officer could accuse you of a heinous crime and you could suffer a stroke from a spike in your blood pressure. That does not mean that the police officer tortured you.

The Army can and did order training and operations that put my men and I under equivalent or worse physical rigor than that suffered by your poor widdle terrorist. Many of us required medical care along the way to treat the injuries and illnesses we suffered. We volunteered for this life and the Army was not guilty of torturing us.

This is getting way past ridiculous.

Mohammed al-Qahtani was a member of the 9/11 terrorist cell who immigration actually managed to deny entrance into the US. We had independent evidence in the form of telephone intercepts identifying him as al Qaeda. al-Qahtani was a terrorist who dedicated himself to the mass murder of Americans.

I have no personal sympathy whatsoever for this human predator and would not extend him a single mercy not expressly required by law. My only concern is whether the military committed statutory torture by inflicting severe pain on al-Qahtani during interrogation. The answer is clearly no.

I could care less whether al-Qahtani cried and pissed his pants like a baby or that his heart rate slowed down. Screw him. al-Qahtani chose his life of terror and is in no position to complain when the life he chose gets rough. I will save my sympathy for the thousands his fellow 9/11 cell members murdered and maimed.


I couldn't imagine a more perfect distillation of the unhinged, need for retribution and bedwetter mentality than this post.

This is exhibit A for me from now on for the fact that seemingly intelligent and productive members of our society have been twisted to the point of dereliction as a result of the 9/11 attacks.
 

How interesting it is to see Bart saying that torture statute is clearly defined by statute.
 

The Fool said...

Your mistake, Bart, is that you're too aggressive -- to the point of being bloodthirsty. You really, really, really want revenge on terrorists.

:::sigh:::

Once again, we are discussing the permissible scope of intelligence gathering, not revenge or punishment.

If a captured al Qaeda is willing to voluntarily answer the questions put to him without coercion, so much the better.

If not, I am willing to use every coercive method allowed by law to gain the intelligence necessary to destroy al Qeada.

In very stark contrast, most of the folks here are willing to allow al Qaeda to continue to murder rather than discomfit a captured al Qaeda terrorist in order to reassure yourselves that you are "civilized."

Instead of placing yourselves in the shoes of the captured al Qaeda terrorist, why don't you place your family in the shoes of al Qaeda's next victims. If it were your family who would die unless you broke the next al-Qahtani, tell me that you would not use coercion to save your family. If you do, you are either lying or hate your family.

It is easy to sacrifice other families on the alter of political correctness until the barbarism comes to your door.
 


It is easy to sacrifice other families on the alter of political correctness until the barbarism comes to your door.

# posted by Bart DePalma : 4:03 PM


Bart, you live in Colorado. The barbarism of 9/11 was over 1000 miles away from you. The people who actually lived through 9/11, and the actual targets of 9/11, voted your cowardly, warmongering asses out of power.
 

There is no reason to fear barbarism coming to our door. By becoming a nation that tortures we become ourselves the barbarians.

As for not putting ourselves in the shoes of a "captured Al Qaeda terrorist," we must. Aside from all legitimate concerns of our becoming the brutes we fear by torturing human beings, we must also fear this: that which we allow today to be inflicted against "the other," against "the worst of the worst, " so-called, against the most egregious offenders, alleged or proven, will tomorrow be approved for application to ourselves.

As for specious assertions that we would allow torture to save our own loved ones, our system of laws is not an instrument of personal revenge. What I might feel emotionally if a loved one were murdered does not justify any natural wishes I might have for the perpetrator(s) to be subjected to horrendous torture. Your argument leads to a system of laws that are merely pretexts for lynching.
 

"Bart" DeBraveheart makes a claim:

If a captured al Qaeda is willing to voluntarily answer the questions put to him without coercion, so much the better.

If not, I am willing to use every coercive method allowed by law to gain the intelligence necessary to destroy al Qeada.


Perhaps. Perhaps not. On the one hand we have your straightforward assertion....

However, I wonder the extent of your dedication and steadfastness. Are you willing to put your own career, liberty, or even life on the line to do what you think needs to be done?

It seems from the discussions here that -- even though you consider such extreme interrogations to be of the utmost importance to the nation and its survival -- you still want immunity for your own acts should you do that. That hardly shows any commitment or bravery ... nor selfless sacrifice. Where is your dedication? Why no credit (and incidentally, responsibility) for your actions?

Cheers,
 

As to Bart DePalma's comments, I often find myself railing at his arguments and totally disagreeing with his reasoning and "logic," as when he implies that "al Qaeda terrorists" deserve the harsh methods of interrogation, and yes, even torture. As if we already know that they were terrorists, and torture is used merely to confirm that fact, reminding me of the churchmen in Europe using tools of the Inquisition, ascertaining that "witches" were really such, and using water torture and the burning pyre to elicit their compact with the devil.

However, calling Mr. De Palma derogatory names just trivializes the force of the argument against De Palma's outrageous statements. I want to see De Palma continue offering his opinions on this blog, no matter how strongly I disagree with him. This is after all a legal blog where any and all positions have a place, as long as anyone who disagrees has a right to try to demolish them by the force of legal argument.
 

Arne Langsetmo said...

BD: If a captured al Qaeda is willing to voluntarily answer the questions put to him without coercion, so much the better. If not, I am willing to use every coercive method allowed by law to gain the intelligence necessary to destroy al Qeada.

However, I wonder the extent of your dedication and steadfastness. Are you willing to put your own career, liberty, or even life on the line to do what you think needs to be done?


I have already put my life on the line doing what needed to be done during wartime. I have nothing to prove to those who have not and would never consider doing so.

It seems from the discussions here that -- even though you consider such extreme interrogations to be of the utmost importance to the nation and its survival -- you still want immunity for your own acts should you do that. That hardly shows any commitment or bravery ... nor selfless sacrifice. Where is your dedication? Why no credit (and incidentally, responsibility) for your actions?

Which part of "every coercive method allowed by law" do you not understand?

What we are talking about is your desire to change the rules ex post facto and criminally prosecute our war fighters. Why would I ask them or myself to allow you to do so to prove our courage? It is enough that we ask our war fighters to put their lives on the line combating foreign enemies without adding domestic enemies to that burden.
 

The Geneva Conventions are not "ex post facto." Torture has been admitted and the GCs don't allow exceptions. QED. It would be a quaint interpretation of "allowed by law" to say that something is legal just because AG Mukasey won't prosecute.

Tangentially I wonder what legal position Mukasey might be in, here. Is it legal for him to ignore the GCs when there is evidence of a violation?
 

I have already put my life on the line doing what needed to be done during wartime

Spewing rightwingnut propaganda on the internet is not "putting your life on the line".
 

Bartbuster, he's talking about the Turkey Shoot.
 

I know he is. And I'm pretty sure he committed war crimes during that. However, the Turkey Shoot has nothing to do with torture.
 

More likely Bart is referring to those desperate times when the mess served chipped beef on toast.
 

Roberto Antonio Hussein Eder wrote apropos LSR Bart:

"This is after all a legal blog where any and all positions have a place, as long as anyone who disagrees has a right to try to demolish them by the force of legal argument."

I could not agree more, my dear sir. But as you well know forensic argument is a process of debate with a Judge who calls time and (subject to the appellate jurisdiction) finally decides the issue. Judge: "I've heard enough, Mr X, in fact I've heard you repeat the same arguments now, 3 or 4 times. Unless you have any new points to bring to the argument, I think it is time to move on. I'm against you on this point."

Bart's version of "forensic argument" does not involve bringing new elements to the debate. It generally consists of (i) bold assertion of a ridiculous proposition; (ii) flat contradiction of anyone who presumes to disagree and (iii) degeneration into vulgar abuse. There is, unfortunately, no Judge.

As an example, notwithstanding that the Torture Convention has been interpreted by Courts around the world with no apparent difficulty, Bart continues to assert that no prosecution can succeed because in his book there is no means of "objectively defining" what constitutes "severe pain" to any given individual. The plain truth is that triers of fact are well used to deciding such matters.

The verdict of a jury which decided that tickling a prisoner with a feather duster would constitute "severe pain" would quickly be vacated as perverse. Likewise the verdict of a jury which decided that the attachment of an electrode to a person's genitals and the passing of a current which gradually increases in intensity until the prisoner is screaming in agony, defecates and eventually looses consciousness did not constitute the imposition of "severe pain", would also be held perverse. In between there many assaults of different degrees of severity and a properly instructed jury, assisted by expert opinion, can well determine whether the assaults in any given case constitute (i) common assault (ii) assault occasioning actual bodily harm, assault occasioning grievous bodily harm, (iv) inhuman and degrading treatment, or (v) torture.

Bart has repeated his argument to this effect on thread after thread ad nauseam But I have not seen him discuss any of the decisions on point. All he does is offer up his own point of view. Again, and again, and again. Unfortunately, I do not consider Bart an authority on any proposition of law. He is not an expert on military matters. I would even hesitate to regard him as a credible witness on any matter of fact. If he told me it was 20.51 hours GMT, I would want to check the clock.

When Bart attempts to deploy a forensic argument, we are all too delighted to see him participate in a reasoned debate. It is because he refuses to engage in that process that he has merited a degree of opprobrium.
 

Mourad:

The verdict of a jury which decided that tickling a prisoner with a feather duster would constitute "severe pain" would quickly be vacated as perverse. Likewise the verdict of a jury which decided that the attachment of an electrode to a person's genitals and the passing of a current which gradually increases in intensity until the prisoner is screaming in agony, defecates and eventually looses consciousness did not constitute the imposition of "severe pain", would also be held perverse. In between there many assaults of different degrees of severity and a properly instructed jury, assisted by expert opinion, can well determine whether the assaults in any given case constitute (i) common assault (ii) assault occasioning actual bodily harm, assault occasioning grievous bodily harm, (iv) inhuman and degrading treatment, or (v) torture.

The elements of assault are easily understood and objectively applied by a jury without "experts."

However, I am fascinated as to what you propose experts would testify in a trial for crimes of "(iv) inhuman and degrading treatment, or (v) torture."

To prevent you from going off on a tangent applying British or ICC law, the US Federal Rules of Evidence, specifically 702 and 703, can be found here.
 

Even the Dalai Lama gets it:

The Dalai Lama, a lifelong champion of non-violence on Saturday candidly stated that terrorism cannot be tackled by applying the principle of ahimsa because the minds of terrorists are closed.

"It is difficult to deal with terrorism through non-violence," the Tibetan spiritual leader said delivering the Madhavrao Scindia Memorial Lecture here.


He also termed terrorism as the worst kind of violence which is not carried by a few mad people but by those who are very brilliant and educated.

"They (terrorists) are very brilliant and educated...but a strong ill feeling is bred in them. Their minds are closed," the Dalai Lama said.

He said that the only way to tackle terrorism is through prevention. The head of the Tibetan government-in-exile left the audience stunned when he said "I love President George W Bush." He went on to add how he and the US President instantly struck a chord in their first meeting unlike politicians who take a while to develop close ties.

 

He went on to add how he and the US President instantly struck a chord in their first meeting unlike politicians who take a while to develop close ties.

# posted by Bart DePalma : 10:10 PM


Bush also struck an instant chord with Putin.

I was able to get a sense of his soul; a man deeply committed to his country and the best interests of his country

How is that working out?

As for the Dalai Lama's comments on terrorism, so Fing what? No one here is advocating pacifism.
 

While little Lisa plays her saxophone, her bro entertains us with:

"Hello, Dalai"
 

The Buddhist leader said he loved the outgoing US president George Bush though he did not agree with some of his policies.
“I love him (US president George Bush) but some of his policies…one time I told him I love you but some of your policies …I expressed that way so he knows I am opposed to some of his policies,” the Dalai Lama said.


Translation:

I looked into is eyes and I realized that he is a criminal.
 

Baghdad, why did you leave out the part about the Dalai Lama opposing Dumbya's policies?
 

Bart, I agree with you that the Dalai Lama gets it. You should educate yourself in that respect, rather than taking what flatters your preconceptions and leaving the rest.

That's a recipe for ignorance, you know.
 

In between there many assaults of different degrees of severity and a properly instructed jury, assisted by expert opinion, can well determine whether the assaults in any given case constitute (i) common assault (ii) assault occasioning actual bodily harm, assault occasioning grievous bodily harm, (iv) inhuman and degrading treatment, or (v) torture.

Exactly so! Bart keeps hammering on the fact that the line between torture and "merely" cruel, inhumane and degrading is extremely unclear. I do not dispute it. But he extravagently avoids mentioning that the distinction is not between what is lawful and what is unlawful, but between greater and lesser crimes.

The line between between greater and lesser crimes is often hazy. How sharp and clear is the distinction between first and second degree murder? Where is the immutable distinction between reckless enough to be murder and reckless enough to be mere manslaughter? Even when laws on theft or vandalism set a precise dollar value in degrees of the crime, different appraisers may disagree on how much the stolen or damaged property was worth. Yet we ask juries to make determinations like these all the time. Their verdicts are not always 100% consistent, but we tolerate different verdicts in similar circumstances so long as the jury is not insane.
 

It is relevant to the issue which LSR Bart again raises to note that over at the Volokh Conspiracy, Professor Eric Posner, also expresses doubt that there will in fact be prosecutions on both political and practical grounds.

First, Posner's analysis of the political position: "The practical question is one of political seriousness, not moral seriousness, and both Obama and Holder have stated that they do not want to start a war with outgoing Republicans. They have good political reasons to avoid such a battle: it would disrupt political cooperation in areas that Obama cares about. Although many people believe that Obama has his priorities wrong, or that Obama can prosecute former Bush administration officials without interfering with ongoing political cooperation, the tea leaves so far suggest that Obama and Holder have more-or-less made up their minds to the contrary, though, like all good politicians, they do not yet want to tie their hands, in case political circumstances change and become more auspicious for prosecution."

This is Posner's analysis of the practical questions of the difficulty of prosecution:

"There are other more mundane reasons that will allow Justice Department officials to persuade themselves not to investigate and/or prosecute that are not connected to politics. Prosecutors prosecute when they believe that they will win. To do otherwise is to waste public resources that could be used to put people in jail. Any experienced prosecutor would engage in the following train of reasoning (even putting aside the immunity provisions in the Military Commissions Act). The waterboarders themselves will testify that they received assurances from superiors and lawyers that waterboarding is not illegal, and that they believed that waterboarding was necessary to protect the nation. The superiors, up to Bush himself, will testify that lawyers assured them that waterboarding is not
illegal, and that they believed that waterboarding was necessary to protect the nation. The lawyers will testify that they honestly believed that waterboarding is not torture—it caused “pain” but not “severe pain,” in the language of the statute—and that in any event statutes need to be interpreted narrowly to avoid a conflict with the president’s commander-in-chief powers. The jury will believe all these people and it will refuse to convict or, at best, it will hang, prolonging everyone’s agony. It might refuse to convict because it doesn’t believe that anyone has the requisite mens rea; because it doesn’t understand the law; or because (most likely) it just doesn’t believe that people should go to jail when they are trying to protect the nation and the law in question is confusing or ambiguous."


Then politics again: "Back to politics. One can easily imagine the defense strategy, which will start by calling to the stand various Democratic senators and representatives who had been informed of the interrogation tactics and did not publicly object to them at the time. The testimony would surely be entertaining, as the politicians would be put in the impossible position of either admitting their moral complicity, which would make the entire trial look like a political show trial designed to punish Republicans but not Democrats, or looking like cowards who knew that the government was breaking the law but despite their oath to the Constitution were unwilling to do anything about it. Do Obama and Holder really want to put leaders of their own party in Congress in this position?"

It is perhaps pertinent to note that Professor Posner's curriculum vitae on his university's web site discloses "zero" prosecutorial experience. After graduation he clerked for Judge Stephen Williams at the DC Circuit Court of Appeals (an author of some useful oil and gas law books) and thereafter he served a year at the Office of Legal Counsel and straight from there into academic law.

On the political issues, Professor Posner is no more an expert than anyone. The points he makes nevertheless have a degree of validity. I think that they militate against the hasty institution of any criminal proceedings and in favour of a thorough investigation before there is any pronouncement from on high that there will, or will not, be prosecutions.

I would hope that a principled approach would at least have regard to (i) the treaty obligation under the Torture Convention to investigate; (ii) the public interest in the repression of serious crime and (iii) the public importance of prosecutions taking place when high officials may have been involved in criminal conduct.

But I would hope that one political consideration Professor Posner mentioned, namely, the possible involvement of some Democratic politicians, would not be considered a relevant consideration. Attorney-General designate Holder made reference during his confirmation hearings for the need for the Attorney-General and the Department of Justice to stand apart from politics. The regard paid to "political considerations" by Attorneys-General and their deputies under the Bush Administration is something which has not redounded to the credit of the Justice Department during the last eight years.

The pro-torture advocates are of course doing what they can to suggest that the use of coercive techniques (i.e, inhuman and degrading treatment) was disclosed to Democrats who participated in congressional oversight. The extent to which this was true is, of course, still classified. True or not, I suggest this is not a properly relevant consideration to the prosecution decision. If it should be shown that Senator x or Congressman y was told of the Administration's actions on classified terms and approved of decisions, so be it. They will have to live with the consequences. "Fiat Justitia Ruat Caelum" is a maxim of some antiquity - certainly used by Lord Mansfield in 1776 in Somerset's Case.

So far as the allegedly technical difficulties of a prosecution are concerned, I have long been a proponent of the blanket immunisation of the small fry. Secondly, I think Professor Posner and Bart over-estimate the difficulty of obtaining convictions. I understand the proper venue for such prosecutions would be the District of Colombia. While I accept the points made about possible defence tactics, I doubt very much that a jury is going to be excessively prone to be kind to either politicians or lawyers. Professor Posner asserts:

"The jury will believe all these people and it will refuse to convict or, at best, it will hang, prolonging everyone’s agony."

UK experience shows that our juries are quite prepared to believe the worst of both politicians and lawyers and do not give them high marks for veracity. Would the good people of the District of Colombia behave any differently? I wonder.
 

As an addendum to my earlier post, readers may care to look at this piece by Victor Hansen and Lawrence Friedman of New England School of Law on the useful University of Pittsburg Jurist site: After Bush: Taking Meaningful Steps Towards Accountability

Although they appear to be pessimistic about the prospects of prosecutions, the authors say this:-

"That is not to say that there would not be some benefit in attempting to hold senior officials accountable in a court of law. Certainly prosecutions would bring home the point that no one is above the law, and that even executive authority and exigent circumstances have their limits. Such criminal prosecutions would also show that it is not just the lower-level actors and government officials who will be held accountable, and that we recognize the need to hold accountable all of those leaders entrusted and empowered to act on our behalf. Criminal prosecutions would also send a clear and powerful message to our friends and foes that we are a democracy with strong institutions, and that we take seriously our responsibilities as a world leader. Such prosecutions would also signal a clear break with the failed policies of the past."

I agree, and think that the relevance of prosecutions, successful or not, to the remaking of the US image on the world stage should not be discounted.

The authors also make a very cogent case for the codification into US domestic law of the internationally accepted doctrine of command responsibility.

While this would be helpful for the future, I confess to a reluctance to believe that conduct which would cause no difficulty to a prosecutor before an international war crimes court is presently beyond the reach of US domestic law. In UK common law terms I would be looking at concepts such as misfeasance in public office in terms of a cause of action in tort and at alleging a conspiracy in criminal law terms - which might even extend to a conspiracy to pervert the course of public justice extending as far as the prosecution teams at Gitmo, but I of course defer to those with a knowledge of US domestic law to express a view about what weapons a US prosecutor might have in his armoury.

As this NY Times article points out Rulings of Improper Detentions in Cuba as the Bush Era Closes there have been a spate of adverse rulings and decisons to repatriate some long term detainees as the transfer of power date approaches. One is forced to wonder what indignities these people also suffered at the hands of their captors.
 

Glenn Greenwald ["Binding U.S. law requires prosecutions for those who authorize torture"] supplied a useful link to a Congressional Research Service report. That is, discussing enabling legislation and State Dept. understandings of the "CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment (signed by the U.S. under Ronald Reagan"

CRS reports are not directly provided to the public at large. This resource is therefore quite helpful.
 

Little Lisa's bro's reliance upon the Dalai 1-L Alarmer led me to conjugate to (Salvador) Dali, with this interesting Wikipedia reference to his politics and personality:


"Dalí, a colorful and imposing presence in his ever-present long cape, walking stick, haughty expression, and upturned waxed mustache, was famous for having said that 'every morning upon awakening, I experience a supreme pleasure: that of being Salvador Dalí.'" Substitute little Lisa's bro for Dali, his backpack of lies for Dali's cape and walking stick, and his beard for Dali's upturned waxed moustache and imagine him saying "Every morning upon awakening I experience a supreme pleasure: that of being Bart DePalma, stalker of Balkinization."
 

Enlightened Layperson said...

Mourad: In between there many assaults of different degrees of severity and a properly instructed jury, assisted by expert opinion, can well determine whether the assaults in any given case constitute (i) common assault (ii) assault occasioning actual bodily harm, assault occasioning grievous bodily harm, (iv) inhuman and degrading treatment, or (v) torture.

Exactly so! Bart keeps hammering on the fact that the line between torture and "merely" cruel, inhumane and degrading is extremely unclear. I do not dispute it. But he extravagently avoids mentioning that the distinction is not between what is lawful and what is unlawful, but between greater and lesser crimes.


Not really.

I was more curious about how Mourad proposed to use experts to prove torture, so to keep Mourad from filibustering off on a different subject, I avoided pointing out that the civilian assault statutes do no apply to the interaction between our military and enemy al Qaeda.

That gets us back to the torture statute, which does not offer greater or lesser crimes.
 

Mourad:

1) Posner's analysis of the political reasons not to pursue witch hunt prosecutions of the last GOP administration studiously ignores the elephants in the room: (1) The Dem congressional leadership approved of the CIA coercive interrogation program and (2) Obama has made it rather clear that he opposes any statutes seeking to deny him the CIA coercive interrogation program, less the politically hot button issue of waterboarding.

Victor Hansen and Lawrence Friedman of New England School of Law on the useful University of Pittsburg Jurist site: After Bush: Taking Meaningful Steps Towards Accountability

Although they appear to be pessimistic about the prospects of prosecutions, the authors say this:-

"That is not to say that there would not be some benefit in attempting to hold senior officials accountable in a court of law. Certainly prosecutions would bring home the point that no one is above the law, and that even executive authority and exigent circumstances have their limits."


Or a jury acquittal or even a jury pardon could ratify the entire program including waterboarding. You better be careful what you wish for.

3) Will you be telling us how you propose to use experts to prove a torture case?
 

"Bart" DeTorquemada:

Once again, we are discussing the permissible scope of intelligence gathering, not revenge or punishment.

... which then means that anyone may be tortured if the gummint thinks they have something of interest. And in fact, crushing a child's testicles is perfectly permissible, if that act will elicit the desired 'information' from the father....

This is true of the "TTB" scenario (and made pretty much explicit by Yoo's 'analysis'.

Cheers,
 

This comment has been removed by the author.
 

"Bart" DeImaHero:

[Arne]: However, I wonder the extent of your dedication and steadfastness. Are you willing to put your own career, liberty, or even life on the line to do what you think needs to be done?

I have already put my life on the line doing what needed to be done during wartime....


The "Turkey Shoot" in '91 was putting your life on the line?!?!? Well, perhaps, but seeing as a large number of deaths there in that cakewalk were FF, you stood a better chance of getting a "U.S."-stenciled ordnance up your butt. And that probability might even be higher for REMFs...

... I have nothing to prove to those who have not and would never consider doing so.

I didn't ask you to "prove" anything. I asked if you'd do what you thought needed to be done even if you were to be held legally responsible for such. You didn't answer.

[Arne]: It seems from the discussions here that -- even though you consider such extreme interrogations to be of the utmost importance to the nation and its survival -- you still want immunity for your own acts should you do that. That hardly shows any commitment or bravery ... nor selfless sacrifice. Where is your dedication? Why no credit (and incidentally, responsibility) for your actions?

Which part of "every coercive method allowed by law" do you not understand?


Why do you then argue that the good ol' Yoo Ess of Aye has always countenanced torture when it's "necessary"? You argue here that we should, contrary to international law, U.S. treaties, and legal precedent, define the law as Yoo laid it out (in a memo since repudiated by even the Dubya maladministration), that in fact what any sentient person thinks is "torture" is indeed a "coercive method allowed by law". This is what they did; they tried to fix the law around the desired ends, and so do you ... in part, as you seem to argue here, because you think there is some "necessity" that excuses such extreme acts.

Your "every coercive method allowed by law" is (as demonstrated above) everything and anything as long as they stop short of death (most of the time); as long as they cease the interrogation and haul him off to the infirmary when his heart starts to falter ... only to bring him back for more once he's been 'stabilised'".

That is clear. That is what Crawford said constituted torture, something you repeatedly deny.

What we are talking about is your desire to change the rules ex post facto and criminally prosecute our war fighters....

Nonsense. The ones that thought that there needed to be new "rules" was the Dubya maladministration that famously called the Geneva Conventions (in the process of sidestepping them or ignoring them) "quaint".

... Why would I ask them or myself to allow you to do so to prove our courage?...

I didn't ask that you do such. I asked if you'd do what you thought "necessary" even if such were illegal (which everyone here but you thinks it is). And you're ducking the question. The "necessity" defence is only appropriate when the act in question is in fact illegal. But would you do it if you thought it necessary? And if so, would you be willing to take any prescribed punishment for "the greater good"?

... It is enough that we ask our war fighters to put their lives on the line combating foreign enemies without adding domestic enemies to that burden....

Dubya might have thought about that when he sent our troops off to fight for a lie (or oil, or bruised egos, or Israel, or whatever).

But I have no problem in insisting that they confine their behaviour to the law when they act on orders from their CinC. In fact, such would seem to be a good bulwark against a tyranny arising here.

Cheers,
 

No matter what Bart DePalma is willing to accept, the "beyond the pale of rational discussion" test appears not to have been met.

That is, if the continual "rational discussion" with cites to legal principles and so forth, is any proof. Even if mixed in is name calling and the like.
 

Two further straws in the wind suggesting that the Justice Department is going to be a very different beast in the Obama Administration.

According to this Scotusblog there has been a pick for the 2nd slot in the Solicitor General's office Neal Katyal to be Principal Deputy Solicitor General. Georgetown Law Professor Neal Katyal argued Hamdan -v- Rumsfeld before the US Supreme Court. and see his article Executive and Judicial Overreaction in the Guantanamo Cases.

And according to Politico, the Vice Dean of Harvard Law School has just e-mailed students due to take courses taught by Professor David Barron informing them that the good professor has just been nominated to the post of Principal Deputy Assistant Attorney General in the Office of Legal Counsel . Professor Baron co-authored with Professor Lederman a 2008 article in the Harvard Law Review link here which is just a mite critical of some of the Bush Administration claims as to the extent of Presidential power in wartime.

Somehow, I don't see either of these gentlemen being willing to countenance claims that inhuman and degrading treatment of prisoners or their torture could be lawful.

And so far as LSR Bart may have any problems about what a Member of the US Forces may or may not do with a person in their custody, I think he might care to refer to the relevant field manuals in particular FM 3-19.40.

And insofar as Bart seems to have problems with experts, has he never heard of a medical expert being called to testify as to the nature and extent of the injuries a person has received, as to the significance of medical records, as to the impact of the application of stimuli or the deprivation of them etc, etc.

Nothing in the Federal Rules on expert evidence to which Bart adverts are in any way significantly different to ours - which is unsurprising since they were inspired by our rules - admittedly in an earlier version to the more detained provisions in our current rules.
 

[Mourad]: In between there many assaults of different degrees of severity and a properly instructed jury, assisted by expert opinion, can well determine whether the assaults in any given case constitute (i) common assault (ii) assault occasioning actual bodily harm, assault occasioning grievous bodily harm, (iv) inhuman and degrading treatment, or (v) torture.

["Bart" DeTorquemada] The elements of assault are easily understood and objectively applied by a jury without "experts."

However, I am fascinated as to what you propose experts would testify in a trial for crimes of "(iv) inhuman and degrading treatment, or (v) torture."

To prevent you from going off on a tangent applying British or ICC law, the US Federal Rules of Evidence, specifically 702 and 703, can be found here.


"Bart", as Mourad pointed out, experts can assist a jury, the ultimate trier of fact.

As you should well know, if it would be of assistance to a jury in determining facts, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, ..."

The primary assistance of such technical witness (and the difference between them and others) is the ability to provide "opinion[s]" on technical matters which the common jury might be unfamiliar with. But the use of such opinions is up to the jury. In no case can such an "opinion" over-ride a jury determination of fact.

Now did you have some kind of point here?

Cheers,
 

"Bart" DeClueless quotes His Holiness the Dalai Lama:

"It is difficult to deal with terrorism through non-violence," the Tibetan spiritual leader said delivering the Madhavrao Scindia Memorial Lecture here.

Oh. So the Dalai Lama says, "violence is where it's at" -- "kill 'em all, torture them when we feel like it, and let Gawd sort 'em out...." "Bart" was right. Oh ... waiddaminnit:

He said that the only way to tackle terrorism is through prevention.

Oooops.

Cheers,
 

Mourad:

Posner's analysis of the political position: "The practical question is one of political seriousness, not moral seriousness, and both Obama and Holder have stated that they do not want to start a war with outgoing Republicans. They have good political reasons to avoid such a battle: it would disrupt political cooperation in areas that Obama cares about. Although many people believe that Obama has his priorities wrong, or that Obama can prosecute former Bush administration officials without interfering with ongoing political cooperation, the tea leaves so far suggest that Obama and Holder have more-or-less made up their minds to the contrary, ...

... or they're willing to give the Rethuglicans a chance to come to their senses. This is overly optimistic, I fear; the loathsome spotted reptiles (Coburn, Inhofe, etc.) are all barking moonbats and will not ... and cannot ... change their spots.

Perhaps the Omama strategy is to extend the hand of bipartisanship (with a jaundiced eye to the possibility of success), knowing that if the Rethuglicans bite his hand in return, then he has all the more ammo to dismiss them and move on without them. A pragmatic approach, but one I disagree with....

Cheers,
 

Mourad:

But I would hope that one political consideration Professor Posner mentioned, namely, the possible involvement of some Democratic politicians [in authorising torture, etc.], would not be considered a relevant consideration.

Indeed. In fact, refusing to investigate and to prosecute on the ground that some of the perps might be Dems would in fact be the very "partisanship" they say they are trying to avoid.

But FWIW, it's Posner who's claiming this, not the Obama camp.

Cheers,
 

Roberto Antonio Hussein Eder:

This is after all a legal blog where any and all positions have a place, as long as anyone who disagrees has a right to try to demolish them by the force of legal argument.

Does that include the "position" that Brown II ordered forced school busing? That the Pentagon Papers case held that the N.Y. Times could be prosecuted post-publication?

No, I'm sorry, Roberto. "Bart" deserves nothing but opprobrium, ridicule, and derision. Not the slightest ounce of respect. There are certain "positions" -- or "opinions" -- that are simply beyond the pale of rational discussion, and when "Bart" won't even admit that he's full'o'sh*te on trivial points of fact, then useful 'conversation' is dead, and he should simply be reviled, scorned, and singled out for the vile vermin he is. He carries nothing useful to any actual legal conversation (except a demonstration of full-fledged RW wingnuttery, of which there's no shortage on the Intertoobz).

Cheers,
 

Mourad said...

And so far as LSR Bart may have any problems about what a Member of the US Forces may or may not do with a person in their custody, I think he might care to refer to the relevant field manuals in particular FM 3-19.40.

Field Manuals are guides. If the President, Sec Def or other authorized chain of command enters a contrary order, the manual goes by the wayside. According to Crawford, "the techniques they used were all authorized" by the Sec Def.

Once again, your hypothetical prosecution needs to prove a violation of the torture statute.

And insofar as Bart seems to have problems with experts, has he never heard of a medical expert being called to testify as to the nature and extent of the injuries a person has received, as to the significance of medical records, as to the impact of the application of stimuli or the deprivation of them etc, etc.

I offer and cross experts frequently in my criminal and civil practices. They hold no wonder or mystery to me.

You are dancing around my question.

This is your "prosecution." Pursuant to Rules 702 and 703, precisely what expert opinions do you think you can admit to explain facts to support your charge that the army interrogators inflicted severe physical or mental pain or suffering on al-Qahtani.

While you are pretending to be a DoJ prosecutor, keep in mind that DoJ had previously consulted medical experts and was told that it is medically impossible to measure the severity of physical or mental pain. That road is closed to you.

Nothing in the Federal Rules on expert evidence to which Bart adverts are in any way significantly different to ours - which is unsurprising since they were inspired by our rules - admittedly in an earlier version to the more detained provisions in our current rules.

Actually, you need to go to the case law interpreting Rules 702 and 703, because their application has shifted over the years under the Frye and Daubert standards among various other judicial refinements. I do not claim to have any knowledge of the British rules of evidence, but it would not surprise me if your courts have different interpretations of the language of the general rules the same way our state courts differ from the feds.
 

To obtain a conviction for torture or prisoner abuse would it not be sufficient merely to convince a jury that prisoner X was subject to treatment Y, and that treatment Y satisfies all or part of the description:

“[v]iolence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; …outrages upon personal dignity, in particular humiliating and degrading treatment.”

To this layman it would appear sufficient that a juror can imagine being the recipient of "treatment Y." If I can imagine being the recipient then I am competent to offer an opinion as to whether that treatment was humiliating or degrading etc.
 

As another layman, I agree with Mattski. I'd add that it would probably be devastating to the defense if the prosecution were to call on the people responsible for creating the SERE training and ask them for what they thought they were training their victims -- I mean students.

Because I don't think it's necessary to train people to be treated as the GCs require.
 

Geesh. I did not intend to suggest that Bart be barred [ouch] from posting, when I made the joke about his identity. I was trying to point out, politely, that an awful lot of energy seems to be devoted, here, to responding to him and, often, in pretty abusive terms. Now, Arne thinks Bart deserves abuse for his views, and I can see that as a response one might have to a source of irritation. But, why not just ignore Bart if he makes one so angry? I don't know, perhaps Bart-bshing is part of the appeal for many on this blog. I was just curious.

Substantively: Robert Cook writes, "As for specious assertions that we would allow torture to save our own loved ones, our system of laws is not an instrument of personal revenge. What I might feel emotionally if a loved one were murdered does not justify any natural wishes I might have for the perpetrator(s) to be subjected to horrendous torture. Your argument leads to a system of laws that are merely pretexts for lynching."
And I say, "Bravo." Every year I have to point out to someone in my philosophy of law course that "You really do not want the law to be based on what I 'would do' if my family were in danger." Usually, they all laugh and get the point. Still, every year there is at least one, "But what would you do/feel if your family was in danger?"
I cannot understand the resiliency of this particular reasoning error.
 

I cannot understand the resiliency of this particular reasoning error.

Reason is not at issue, emotion is. Emotional responses dressed up as "rational" are the mark of reactionaries and extremists world wide.

The reptilian brain does not graciously defer to higher thought processes.
 

Every year I have to point out to someone in my philosophy of law course that "You really do not want the law to be based on what I 'would do' if my family were in danger." Usually, they all laugh and get the point. Still, every year there is at least one, "But what would you do/feel if your family was in danger?"
I cannot understand the resiliency of this particular reasoning error.


You don't get it Chris. To Bart and others like him, this isn't about law. Their whole point is that this is "warfare, not lawfare," and therefore the rules of law do not apply. They then proceed to define "war" so broadly as to relegate law to a quaint relic.
 

C2H50H said...

As another layman, I agree with Mattski. I'd add that it would probably be devastating to the defense if the prosecution were to call on the people responsible for creating the SERE training and ask them for what they thought they were training their victims -- I mean students.

Here is how you deal with SERE instructors.

SERE is actually far more difficult than anything al-Qahtani underwent.

The SERE instructor does not believe that he is a criminal violating the torture statute.

You also bring out the fact that all of the interrogators have undergone this interrogation so they understand what the prisoner is undergoing.

In closing, you argue that, if our soldiers can undergo rigorous training, why can't a terrorist undergo rigorous interrogation to save the lives of our soldiers.
 

Enlightened Layperson said...

You don't get it Chris. To Bart and others like him, this isn't about law. Their whole point is that this is "warfare, not lawfare," and therefore the rules of law do not apply.

No, I appear to be the only one here that actually believes in the rule of law.

In order to have the rule of law rather than the arbitrary rule of men, you must have an objectively quantifiable rule that places a citizen on notice what is and is not permitted. If the rule is whatever a prosecutor or a jury thinks it should be, then you do not have the rule of law, but rather arbitrary persecution.
 

In closing you argue that if our soldiers can be trained to resist the assaults of a barbaric enemy, why can't we use the techniques of a barbaric enemy against our captives, whom we hope and suppose are barbarians.
 

"Bart" DePalma:

While you are pretending to be a DoJ prosecutor, keep in mind that DoJ had previously consulted medical experts and was told that it is medically impossible to measure the severity of physical or mental pain...

Typos there: That would be "Dubya consigliere John Yoo". and "medical 'experts' like Tomás de Torquemada and Heinrich Himmler".

But strangely enough, John Yoo pretended to do precisely what "Bart" here claims is impossible, doing an ol' "cut'n'paste" from some medical tort case to supposedly "define" what "severe pain" was. Which might come to bite him as an admission against interest, since they nearly killed al-Qahtani....

Cheers,
 

In order to have the rule of law rather than the arbitrary rule of men, you must have an objectively quantifiable rule

That's a rather neat proof that the rule of law has never and will never exist.
 

In order to have the rule of law rather than the arbitrary rule of men, you must have an objectively quantifiable rule

If that were the case, you would not have a job. .08+, game over.
 

"Bart" DeSpewsUnconnectedVerbiage:

Actually, you need to go to the case law interpreting Rules 702 and 703, because their application has shifted over the years under the Frye and Daubert standards among various other judicial refinements.

Care to explain how either the Daubert or Frye standard (or the 2000 FRE amendments) would cause any difficulties?

Cheers,
 

chris:

Now, Arne thinks Bart deserves abuse for his views, and I can see that as a response one might have to a source of irritation. But, why not just ignore Bart if he makes one so angry?

You make a mistake as to my state of mind. It's not anger, it's contempt and revulsion. And stating the truth is hardly "abuse", even if it takes the form of ridicule.

Cheers,
 

Bart,

Taking difficulty in quantifying pain as a cart blanche to inflict it so long as you don't kill or maim anyone may be your idea of upholding the rule of law. It is not mine.
 

Women voluntarily undergo extreme pain, sometimes many times, in childbirth, but does this mean that inflicting that level of pain on an unwilling victim is not torture?

I've had teeth drilled without anesthetic (hey, we was poor) but does anyone think that Marathon Man wasn't a depiction of a particularly fiendish torture?

But Bart sidestepped the issue: does anybody think that, under oath, the SERE instructors would deny that they're preparing their trainees to withstand torture? Because if they don't believe that, there is no reason for the training.

How do you think a jury would respond to this expert testimony?
 

"Bart" thinks that rape is not a cognizable crime:

In order to have the rule of law rather than the arbitrary rule of men, you must have an objectively quantifiable rule that places a citizen on notice what is and is not permitted.

I would recommend refraining from hiring him in one's defence should one be faced with such a charge; he might not present the best defences available.

Of course, "Bart" is perfectly free to disagree with my assessment here, and trot out the many examples of criminal laws that have been struck down on the grounds of "void for vagueness", and argue how they are analogous to the provisions of 18 USC § 2340A (and differentiate the few other laws [such as the majority of state criminal codes] which, while similar in structure and specificity to the torture statute, have been upheld). His last pathetic attempt at doing so was quite unpersuasive and he fled the scene.

Cheers,
 

But, why not just ignore Bart if he makes one so angry?

To add a view: I sympathize with those who wish Bart would go away, and also wish he were ignored. Bart-sport isn't for everyone. For myself, if Bart is here trying to land blows for his view of the world, I am going to trade blows with him. And I enjoy the wit and humor of many of the responses to Bart.

Why can't we adopt a "double-helix" format here? Let the serious Un-Bart discussion co-exist with the mud-wrestling.
 

Politico is now reporting that-

"Georgetown Assistant Dean Sally McCarthy emailed students enrolled in Lederman's course on "Constitutional Distribution of Powers to Congress and the Executive" that the class "has been canceled effective immediately for the Spring 2009 semester due to Professor Lederman accepting a position in the new Administration."

So, while congratulating Professor Lederman, I venture to suggest that Ben Smith's comment has some substance:-

"Lederman, another former Clinton Office of Legal Counsel lawyer, is perhaps the most prominent of several high-profile opponents of the Bush Administration's executive power claims joining Obama, a mark that he intends not just to change but to aggressively reverse Bush's moves on subjects like torture."

An outcome devoutly to be desired.

The rule of law is back, folks!
 

"In order to have the rule of law rather than the arbitrary rule of men, you must have an objectively quantifiable rule that places a citizen on notice what is and is not permitted."

Assault statutes (and even battery statutes) also come to mind. I'd note that assault statutes usually have a requisite specified "intent" very similar to the torture statute. What I'm finding hard to find is where they objectively quantify the other elements in such a way that the potential assailant has a reasonable "notice what is and is not permitted"....

Cheers,
 

Enlightened Layperson said...

Bart, Taking difficulty in quantifying pain as a cart blanche to inflict it so long as you don't kill or maim anyone may be your idea of upholding the rule of law. It is not mine.

That is John Yoo's view, not mine or the view that underlies the CIA's coercive interrogation program. The purpose of coercive interrogation is not to inflict severe pain, but rather to wear down and disorient the prisoner. The only method that even gets close to torture is the infliction of momentary panic through water boarding.

As I have posted on multiple occasions, it is very easy to amend the torture statute to set objective standards - spell out what is prohibited either by listing the forbidden acts or by stating what is permitted like the techniques in the Army Interrogation manual. While I do not think that restricting interrogation to the Army Interrogation manual is wise, it is far superior to the arbitrary "how many angels can dance on a pinhead" guessing game that is the current torture statute.
 

Mourad:

Politico is now reporting that-

"Georgetown Assistant Dean Sally McCarthy emailed students enrolled in Lederman's course on "Constitutional Distribution of Powers to Congress and the Executive" that the class "has been canceled effective immediately for the Spring 2009 semester due to Professor Lederman accepting a position in the new Administration."


I suspected as much, and speculated this was in the works, due to his absence from the blog here.

I join Mourad in congratulating Prof. Lederman in his appointment, and can think of no one else that I could recommend as highly for a position in Obama's administration (even if I [apparently] disagree with him somewhat as to what the legal effect of prior OLC opinion should be).

This is a good sign.

Cheers,
 

"Bart" DeTorquemada:

That is John Yoo's view, not mine or the view that underlies the CIA's coercive interrogation program. The purpose of coercive interrogation is not to inflict severe pain, but rather to wear down and disorient the prisoner. The only method that even gets close to torture is the infliction of momentary panic through water boarding.

But even "Bart"'s hesitance and restraint here (if we take his claim as true) would mean that everything that the CIA did is also available to your local constabulary for the common [suspected] crook (or anyone else that might have information of interest, for that matter). As Scalia pointed out, if it's not post-conviction punishment, it's A-OK ... and for a good purpose too.

Cheers,
 

For the record, I believe there is a "serious" legal argument in favor of this, even if it was technically "torture". Unless you are claiming that Alan Dershowitz is not a "serious" legal scholar.
 

Charles:

For the record, I believe there is a "serious" legal argument in favor of this, even if it was technically "torture". Unless you are claiming that Alan Dershowitz is not a "serious" legal scholar.

A "serious legal argument" for what? And even though is was "technically" torture? If it was technically torture and torture is illegal (see 18 USC § 2340A), are you suggesting we ignore this law?

As for Dershowitz, IIRC, he was arguing for making torture legal prospectively (and under 'judicial supervision' so it wouldn't get out of hand). Not that torture was already legal or that violations should be ignored.

Cheers,
 

... Professor Lederman accepting a position in the new Administration ...

Well if this turns out to to true it will be something. Really something!
 

Ok, Bart-Warriors: go to it! I'll just try to skip to the meatier parts of the arguments. :-)

Bart seeks 'Objectively qunatifiable rules.' I'm not sure I can make sense of this. What is a 'quantifiable rule'? Does this mean the rule must specify quantitative measures of something? (Then it is not the rule that is quantifiable, I think).
And, surely, not all legal rules adress quantification?
 

you people are ridiculous. do u know what these people would being do to u if u were their prisoner? do u think your sympathy for them would save you? they are animals. they wouldnt be waterboarding or coercing you, they would be cutting pieces out of you, they would cut your head of with a kitchen knife and then sleep like a baby that night. u people dont understand what we are up against. your worried about their civil right? jesus christ you are living in a fantasy world. these people would happily give their lives to kill any one of you. you human rights activists are pathetic. search google for some videos of them cutting the heads of screaming kneeling men and then tell me that its wrong that we made them cry during their interrogation. good lord what the hell is wrong with u people
 

Arne Langsetmo: jesus dude u are by far the dumbest most insane leftist here. i cannot even believe some of these things im reading from you. bart is a soldier whos served in battle. i guarantee u dont have the courage to do and see the things he has. its one thing to disagree, yet u sit there and mock him saying he deserves no respect. im assuming your so far left that u probably feel the same about all soldiers. my jaw is literally on the floor reading some of these comments. you people are living in a fantasy world. if people like you had been running this country 70 years ago the nazis would have rolled right over us.
 

Danny:

Good points.
 

Hey danny:

if people like you had been running this country 70 years ago the nazis would have rolled right over us.

FDR was a Democrat. It was the Republicans at the time, with their friends in the American Bunds (Google it if you're too farkin' clueless to know what these were), who were isolationist at best, with some of the more RW type even favouring alliance with Hitler.

Now go upstairs to mommy; I think your supper is ready (if you haven't spoiled your appetite with too many Cheetohs.

Cheers,
 

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