Balkinization  

Monday, March 16, 2009

No More Debate About Whether We Tortured

Brian Tamanaha

This article by Mark Danner in the New York Review of Books ends the debate over whether we tortured.

Danner's article is based upon a report by the International Committee of the Red Cross, which interviewed prisoners. The report explicitly concludes that we "tortured" a number of prisoners. But don't take the ICRC's word for it. Read the extensive accounts by the prisoners of their treatment and decide for yourself (although they were kept in isolation, their accounts substantially coincide).

Grotesque is the word that comes to mind to describe our treatment of these fellow humans--from administering bouts of suffocation, to extreme cold, to forced standing in chains for hours on end with their hands above their heads, to terrible beatings.

As the discussion moves forward, let us at least drop further hypocrisy and doublespeak (A soon to be infamous Bush statement made directly to the American people and the world: "The United States does not torture. It's against the law, and it's against our values.")

In plain terms, this is what happened: Bush Administration officials, with crucial assistance from top Justice Department lawyers, ordered that prisoners be tortured because they collectively thought it was necessary.

Torture was and is illegal under domestic and international law (never mind morality). Now the questions revolve around what can or should be done about it.

But please, no more pretense--no more phony debates about whether our "alternative procedures" amounted to "torture."



Comments:

"But please, no more pretense--no more phony debates about whether our 'alternative procedures' amounted to 'torture.'"

Before this thread is over, we'll hear the pretense, the phony debates, ad nauseum. After all, guns don't kill people. And Bush personally did not torture anyone. Nations don't torture, people do. The chain of command is delinked at some lower level to avoid going up the ladder with responsibility.

What can or should be done takes too much courage.
 

Brian:

Thanks for the link. I am preparing for trial and will review the entire article later. However, I would offer a couple preliminary observations from a quick skim of the article.

1) Mr. Danner did not release the Red Cross report leaked to him. Why not? All that is provided are cherry picked snippets amounting to maybe 3-4 pages of what is purported to be a 43 page report.

2) Why didn't Mr. Danner's Red Cross source produce the raw interview transcripts from which the 43 pages of the report were themselves selectively culled? It would be interesting indeed to read the questions posed to the enemy. Were they open ended or leading? Did the Red Cross attempt to cross examine the enemy to bring out discrepancies or simply accept the enemy's version of events without question?

3) Once again, it is necessary to point out that the enemy is trained to lie about being tortured while in captivity. Read Lesson 18 of the the al Qaeda training manual captured in Britain and obtained from the FBI website. You can find a .pdf of the original British translation here.

The selectively edited allegations of the enemy hardly end the debate, but merely start it. Skeptical cross examination is now called for.
 

I don't think there's been any real debate for a very long time now, and judging by the latest rehash of the Addington / Yoo theory of detention filed by DOJ last Friday, the pretense is very far from over.
 

I am sorry to say that Bart has a point: the allegations of prisoners are just that, allegations.

They fit rather well with what we've already discerned, and I give the ICRC a great deal of credit for being more than stenographers; but I think it's fair to say that the report, unless corroborated by more than the prisoners' allegations, is not going to be definitive.

What it *should* raise is a rebuttable presumption that it's correct -- the ICRC is credible enough for that -- so that the ball bounces into the feds' court.

If there's anything false in the report, the government should not waste any time telling us about it. Until I hear otherwise, I'll presume that the allegations are broadly correct.
 

"Skeptical cross examination is now called for."

How about applying the same standard to Yoo, Addington, Cheney, Bush, up the chain? Are they trained to lie, or would such come naturally? How about getting all the White House Emails rather than perhaps a few selectively culled?

These are just some preliminary observations of little Lisa's bro's preliminary observations.

Let's keep a tally of the pretense and phony debates of little Lisa's bro as he progresses with his review.
 

The selectively edited allegations of the enemy hardly end the debate, but merely start it.

This report "starts the debate" on whether detainees were tortured? This is an absurd conclusion. Regarding cherry-picking, it seems that some was done, only in this case by DePalma, and only of numerous reports that definitively establish that detainees were tortured in U.S. custody. I honestly am not sure how such cognitive disconnect is at all possible by someone who purports to read this blog on a regular basis.
 

Shag:

You are free to cross examine the statements of Yoo, Addington, Cheney, Bush on this subject. It would be a significant improvement from your usual name calling level of discourse.

In short, you can play the role of prosecutor and I the defense attorney. Remember that you have the burden of proof beyond any reasonable doubt. Offer your evidence.
 

Bart,

As other posters suggest, this is not the first or only report of our abuse of prisoners, and the reports all say much the same things. The difference here is the graphic first hand details of the treatment, which makes plain the illegality of the conduct.

And let us not forget that Cheney has several times (on tape) admitted that we waterboarded, and that John Yoo explicitly stated the same in an WSJ Op-Ed. Their statements corroborate the descriptions by the prisoners of at least the waterboarding. Indeed, there is no doubt about this.

Finally, let us not forget that the CIA destroyed their tapes of the interrogations (I believe 92 tapes in total). You can draw your own implications about why they did that (and of course courts routinely draw adverse implications from the destruction of evidence).

As I suggested in the post, it is time to drop the pretense about what happened.

Brian
 

Brian:

I agree that the fact that CIA waterboarded three enemy officers for a total of less than five minutes has been admitted and is not disputed. Whether this constitutes "torture" under the Torture Statute is very much disputed.

The CIA has probably also admitted the scope of other enhanced interrogation techniques and those techniques were employed against the 14 high value targets as reported by ABC's Brian Ross.

If CIA's destruction of the 92 hours of interrogation tapes suggests a desire to conceal wrongful activity, the fact that CIA made the tapes for training in the first place suggests the opposite. In reality, CIA very likely destroyed the tapes containing top secret statements of the enemy to keep a court from making them public.

The question is not whether an enhanced interrogation program exists and whether it was employed against these 14 high value targets. It was. Rather, the question is whether the enemy is being truthful in his description of that program or whether their claims are a propaganda pretense.

For example, there is an enormous difference between the approved technique of having the enemy stand for up to 8 hours and the rather incredible allegation that he was hung from handcuffs in a standing position for weeks on end. The former is not torture under any rational understanding of that term, while the latter very likely is.
 

Rather, the question is whether the enemy is being truthful in his description of that program or whether their claims are a propaganda pretense.

These detainees were held in isolation from each other, and yet tell remarkably similar stories. Did Al Qaeda accurately predict the techniques that we would use, so that the detainees would all describe them in similar fashion?

There is a simple test for determining whether or not the detainees lied about their treatment. The CIA should release whatever logs they maintained regarding their treatment, as well as communications between Bush administration officials and interrogators discussing what methods should be applied. A truth commission should serve that purpose adequately.
 

Cherry-picking? What an absurd argument. What context could possibly justify the behvior described in the excerpts?
 

Actually, legitimate debate on this question ended years ago. We tortured.

We did it, we know it, the world knows it, no one is impressed by the word games of torture apologists. The Red Cross was not confused in the slightest at the time, and by this time, nobody else should be.

But Danner's piece addresses more than that.

The torture was "approved by the President of the United States and monitored in its daily unfolding by senior officials, including the nation's highest law enforcement officer."

And: "The most senior officers of the US government, President George W. Bush first among them, repeatedly and explicitly lied about this.

And: "For all the talk of ticking bombs, very rarely, if ever, have officials been able to point to information gained by interrogating prisoners with 'enhanced techniques' that enabled them to prevent an attack that had reached its 'operational stage' (that is, had gone beyond reconnoitering and planning)". Contrary to the "widespread perception that such techniques have prevented attacks, [a perception] actively encouraged by the President and other officials".

We tortured, we lied about it, we pretended it wasn't torture, and we whipped up support for it by lying that it was preventing attacks.

By "we" I mean George W. Bush and his enablers in the Congress. But trust me, that's a distinction that neither the world nor history will care about. It'll be clear enough, and accurate enough, to say the United States of America tortured prisoners, and lied about it a lot.
 

This is what will happen. More and more people involved in the torture conspiracy perpetrated by the Bush administration will talk and leak documents. A growing body of evidence will dovetail and confirm other allegations made by those who have been tortured. At a minimum, there were elected officials, political appointees, doctors, psychologists, lawyers, military officers, enlisted personnel, translators, interrogators, and guards who can provide evidence about Bush's and Cheney's torture programs.

A great deal of what we know today comes from people in the chain of command who broke rank with Bush policies or low-level personnel whose trials provided details. As time goes by, bitter and ashamed people will point fingers at their cohorts and we will have a long list of names. Some will face disciplinary action from professional organizations. They will talk, almost all of them. An official record will emerge from various fora. Eventually, we will get almost an irrefutable picture of what happened.

The people who continue to dispute the documentation, the testimony, and all the other allegations of torture will have to practice in front of mirrors at keeping straight faces as they continue to deny torture ever occurred. They will have all the credibility of tobacco company lawyers or modern-day Holocaust deniers.

You can look at the blogs and the comment sections of various newspapers and see that an army of trolls are out in force right now either denying torture was Bush policy or praising Bush for creating such policies. Right now these torture deniers and apologists have one mission: win the public political debate on whether Bush and his cohorts should be prosecuted for torture conspiracy.

In Richard Nixon's day, the chief apologist for the disgraced ex-president was Rabbi Baruch Korff. His job after the Nixon resignation was to derail any prosecution. Korff’s "hasn't the man suffered enough" mantra was the "let's not look backward" talking point of that era. And it helped secure the Nixon pardon. There really is nothing new under the sun.

Today's blogger trolls, and the political class they serve, have one object: destroy any torture or war crime prosecutions. Whatever they say at the moment, it's always about derailing torture conspiracy indictments.

George W. Bush, Dick Cheney, and a whole host of their top policy makers deserve indictment because they knowingly broke clear anti-torture laws, the evidence of their crimes is substantial and growing, and they have been so defiantly arrogant as to confess what they did to television interviewers. Neither one has a bit of remorse for the damage they have done.

Americans also deserve to have these war criminals and torture conspirators prosecuted because, lacking the deterrent effect of such prosecutions, we are all under the threat of future leaders who would claim dictatorial powers. It is beyond serious argument that Bush and Cheney unjustifiably claimed such powers while they were in office.

The goal of the torture deniers and torture apologists is to preserve the expanded powers that Bush and Cheney unconstitutionally usurped for the White House. They need to derail any torture prosecutions. The goal for those who really believe the oaths they took to preserve and support the Constitution is to bring back the rule of law. By using the law to prosecute those who tried to kill it.
 

Prof. Tamanaha:

Danner's article is based upon a report by the International Committee of the Red Cross, which interviewed prisoners. The report explicitly concludes that we "tortured" a number of prisoners. But don't take the ICRC's word for it. Read the extensive accounts by the prisoners of their treatment and decide for yourself (although they were kept in isolation, their accounts substantially coincide).

Oh, we can't believe these Al Kaheeda guys. They've been trained to lie, and we have Al Kaheeda training manuals just as damning as the Downing Street memo where those perfidious vermin are taught to attribute to use their own very base and vile techniques to us for proppy gander purposes. I mean, slicing a guys' penis?!?!? Who could come up with stuff like that, I ask....

Cheers,
 

Bart DePalma:

1) Mr. Danner did not release the Red Cross report leaked to him. Why not?

If you knew anything about the ICRC, you'd know they don't publicize such reports, as this would potentially subject them to controls on their access in the future, and thus a diminution of their ability to do their job, first and foremost. They work behind the scenes with the involved parties in an effort to correct any issues that arise.

Cheers,
 

The selectively edited allegations of the enemy hardly end the debate, but merely start it. Skeptical cross examination is now called for....

Under oath and penalty to perjury. And this applies to all parties. I'm all for it.

Cheers,
 

If CIA's destruction of the 92 hours of interrogation tapes suggests a desire to conceal wrongful activity, the fact that CIA made the tapes for training in the first place suggests the opposite.

Oh, yes. Indeed. Every time I prepare a course for my customers, I make sure to destroy the course materials (even beforehand, sometimes). It's the best way to efficiently prepare such training. Of course, I've never been presented with a demand that I preserve such records, and then went and destroyed them.

Cheers,
 

Bart DePalma said...

I agree that the fact that CIA waterboarded three enemy officers for a total of less than five minutes has been admitted and is not disputed. Whether this constitutes "torture" under the Torture Statute is very much disputed.

It would be interesting to see if you would continue denying that waterboarding is torture while being waterboarded for say, a minute and a half, while knowing that it would stop at the moment you agreed that it was torture.

It’s much easier to deny waterboarding is torture when it is being practiced on someone else whom you have already dehumanized.
 

But, wait, we only murdered three of these guys and
they were high value and it was only less that five
minutes
 

It would be interesting to see if you would continue denying that waterboarding is torture while being waterboarded for say, a minute and a half, while knowing that it would stop at the moment you agreed that it was torture.

# posted by Hank Gillette : 8:39 PM


I have offered to waterboard him, but I can't guarantee that I'd stop at 90 seconds.
 

"I am preparing for trial and will review the entire article later." Preemptive excuse.

"Remember that you have the burden of proof beyond any reasonable doubt."

What burden did George W. Bush on down have regarding these detainees over the past 6 years? What evidence have they offered? They didn't even want to go to trial.

Yes, little Lisa's bro has to prepare for trial and pull an all-nighter. Cough medicine defense this time? Too much mouthwash? The tree was going 30 mph in a 20 mph zone when it hit my car and broke a bottle of Bombay that soaked me?

How did the Bush Administration prepare for trial? By not going to trial?
 

Folks may want to read up on the ICRC and the Geneva Conventions. The relationship is unique. To a large extent, they get to define 'grave breaches' of the Geneva Conventions. There is now no doubt that prima facie case exists that George W. Bush and his lackeys committed war crimes of the worst category. If he is not prosecuted, the entire structure of international law is in jeopardy. It's really not too much to say that the foundation of civilization (at least at the international level) is at stake. Whatever your politics, you should be clamoring for Bush to be put on trial. If he's innocent, he should be afforded the opportunity to prove it. This report condemns in the eyes of the civilized world. It would be unfair to him and the alledged victims to allow this report to unanswered.
 

I won't get personal against Bart but would ask him: if you don't believe this report, what about the photographs? Those aren't from an al quaeda field manual? I saw the frontline special and it had pictures of detainee areas of Guantanamo, shackles to floors, etc. And there are interviews of US soldiers, not al quaeda targets, admitting these detainees were treated inhumanely.

Bart: I voted for W twice. We tortured people. The thing is, I would have said "okay" to torture if it meant we won a war. But we tortured and we still lost a war ("on terror"). and we tortured and we lost another war (in Iraq) which we started for no reason. These guys we tortured in guantanom, after they had been years removed from a battlefield, what possible useful info could they know? Bart, do you think what happened at Abu Ghraib, AS DOCUMENTED IN PHOTOS, i.e. not from an al quaeda field manual, was torture? do you think it happened?
 

Baghdad Bart thinks we won in Iraq. He thinks we are winning in Afghanistan. He lives in a different reality from the rest of us.
 

Here's the closing paragraph of the WaPo editorial today (3/17/09) on the torturn story:

"Full disclosure is one way of undoing the damage done by the secret prisons and Guantanamo. It should not be left to the International Red Cross to document alleged instances of torture and other abuses; the United States should show itself capable of investigating and fully disclosing its own human rights violations."
 

WaPo puts it mildly. It could also be put: every day we don't vigorously investigate the war crimes of the Bush administration, we prove to the world that this was no one-time aberration, this is America: we torture. And we destroy a little more of the protection against torture for our own men and women in uniform.
 

Well it seems pretty simple now. People like Bart will acknowledge that the Bush Administration waterboarded people, but that these people shouldn't be prosecuted even though waterboarding is and has been defined as torture for a very long time.

There is no cognitive dissonance to decode here, no logic to reverse or prove to him/them. They think certain people should be able to operate with impunity, without even an investigation. I don't agree, but that doesn't mean that Bart and his ilk can be convinced otherwise. You can't argue with a dead-end true believer in conditional prosecution and malleable interpretations of the letter of the law. As a lawyer (if in fact he is one), he is by definition a charlatan.
 

Good to see that comments are allowed (for some threads) now.
 

Eric, the cognitive dissonance comes in when one describes the same treatment applied to an American soldier; oh that's torture! No question about it. You'll never get anyone, no matter how far to the right, to say otherwise. But if we did the same thing, somehow it's not, because mumble mumble foo foo Yoo who-de-who enemy combatant hey look over THERE!
 

Bart:

Good points. Keep in mind also that the reporter to whom this "secret" report was leaked has a clear agenda as well: Mark Danner is also the author of "The Road to Illegitimacy: One Reporter's Travels through the 2000 Florida Recount".
 

Arne Langsetmo said...

BD: 1) Mr. Danner did not release the Red Cross report leaked to him. Why not?

If you knew anything about the ICRC, you'd know they don't publicize such reports, as this would potentially subject them to controls on their access in the future, and thus a diminution of their ability to do their job, first and foremost.


You mean except for leaks to the press like this one?

BD: The selectively edited allegations of the enemy hardly end the debate, but merely start it. Skeptical cross examination is now called for....

Under oath and penalty to perjury. And this applies to all parties. I'm all for it.


:::chuckle:::

The 14 high value detainees are lying mass murdering terrorists. Why would they possibly give a fig about our perjury laws?
 

abu hamza said...

I won't get personal against Bart but would ask him: if you don't believe this report, what about the photographs? Those aren't from an al quaeda field manual? I saw the frontline special and it had pictures of detainee areas of Guantanamo, shackles to floors, etc.

Shackling to the floor is not torture.

And there are interviews of US soldiers, not al quaeda targets, admitting these detainees were treated inhumanely.

You are free, of course, to offer interviews describing torture.
 

jpk said...

Eric, the cognitive dissonance comes in when one describes the same treatment applied to an American soldier; oh that's torture!

No, its coercive interrogation in violation of the GC POW privileges which American soldiers earn by following the laws of war and which al Qaeda does not because they do not comply with the GCs.
 

Bart:

They don't care, as long as they can use it to get more votes for their side.
 

which al Qaeda does not because they do not comply with the GCs.

# posted by Bart DePalma : 10:14 PM


Really? Since when? The German Army butchered Russians and Jews by the millions, which I'm pretty sure violated the GCs. Did that mean they didn't qualifiy for GC protection?
 

They don't care, as long as they can use it to get more votes for their side.

Actually, it probably costs votes. If it gained votes, I'm sure Obama would already have Cheney in chains.
 

charles said:

They don't care, as long as they can use it to get more votes for their side.

Nice job of projection there.

Not everything is political, or about getting votes. Sometimes it’s a matter of honor, the rule of law, and just plain human decency.

Torture does not just degrade and dehumanize the victims. It also debases the people doing the torturing.

Maybe many or even most of the people tortured are the worst kind of murderers and torturers. But we are supposed to be better than that. We cannot defeat evil by descending to their level. If we do, even if we win, we’ve lost.
 

Hank:

Are you also a pacifist, morally opposed to even WWII? I can assure you I am not.
 

This comment has been removed by the author.
 

Mr. De Palma wrote:

"it['s] coercive interrogation in violation of the GC POW privileges which American soldiers earn by following the laws of war and which al Qaeda does not because they do not comply with the GCs."

I'm not quite sure what grounds there can possibly be for debating whether waterboarding is torture.

Many of the 'alternative interrogation methods' memo'd and proscribed for use in Guantanamo, Iraq and Afghanistan were the product of the reverse engineering of SERE training, which was developed specifically to inure US soldiers to torture.

Waterboarding, used since the Inquisition, during the French Algerian wars and onwards, was a feature of the SERE program because the military recognized it as a form of torture a US soldier might be likely to encounter.

If it's torture for US military personnel, it follows logically that it must be considered torture for everyone else.

As far as the Geneva Convention goes, Article 3 is clear on this - the rules of the convention must be upheld even if only ONE of the parties is a signatory. It does not require reciprocal adherence to remain in force.

Furthermore, Article 3 states:

"each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
"

The Bush government gave written permission to keep prisoners naked, threaten them with working dogs, exploit phobias, maintain them in stress positions, deprive them of sleep, light, etc.

The very existence of the SERE program is a persuasive argument that waterboarding and indeed many of the other 'alternative interrogation methods' can be legally considered torture.

Or are we going to make that disappear too?
 

Bart:

BD: 1) Mr. Danner did not release the Red Cross report leaked to him. Why not?

[Arne]: If you knew anything about the ICRC, you'd know they don't publicize such reports, as this would potentially subject them to controls on their access in the future, and thus a diminution of their ability to do their job, first and foremost.

You mean except for leaks to the press like this one?


Bart, the ICRC is not the least happy about this leak, despite the nature and gravity of the crimes.

Cheers,
 

Bart:

BD: The selectively edited allegations of the enemy hardly end the debate, but merely start it. Skeptical cross examination is now called for....

[Arne]: Under oath and penalty to perjury. And this applies to all parties. I'm all for it.

:::chuckle:::

The 14 [alleged] high value detainees are [alleged] lying mass murdering terrorists [except when they "confess" and this is used to justify their torture]. Why would they possibly give a fig about our perjury laws?


The Dubya maladministration are all pathological liars (and willing torturers, that is to say war criminals, to boot). Why would they possibly give a fig about our perjury laws?

That being said, in both cases, this should be no impediment to questioning them under oath and subjecting them to the laws of our country for any bad behaviour under oath. Or do you argue that questioning under oath is of no use as a tool to legal inquiry aimed at discerning the truth, and thus can and should be ignored by anyone so inclined?

Cheers,
 

Bart:

You are free, of course, to offer interviews describing torture.

You are free, of course, to read the accounts of lawyers, ICRC interviewers, military and FBI personnel, etc., many of which have been lnked for you in previous discussions. You're also free to link to any accounts you might find by such that deny these events. You are also free to watch "Taxi to the Dark Side", which has been recommended to you previously after you'd trashed the movie sight unseen.

Cheers,
 

Bart:

[jpk]: Eric, the cognitive dissonance comes in when one describes the same treatment applied to an American soldier; oh that's torture!

[BDP]: No, its coercive interrogation in violation of the GC POW privileges which American soldiers earn by following the laws of war and which al Qaeda does not because they do not comply with the GCs.


Funny. Because we tried and convicted Japanese officers that did this to our troops. And have tried our own soldiers for waterboarding Filipinos and other war crimes.

Cheers,
 

Madeleine Morris:

Can you not hold your breath for 10 seconds?

P.S. to Arne: Careful with those four posts "in a row".
 

Just in case anyone wants to count how many TOTAL posts Arne Langsetmo has left here:

http://www.google.com/search?hl=en&safe=off&q=site%3Abalkin.blogspot.com+%22Arne+Langsetmo%22
 

Back on topic: Andrew McCarthy, a former U.S. federal prosecutor now serving as director of the Center for Law and Counterterrorism, stated in an October 2007 op-ed in National Review that he believes, when used in "some number of instances that were not prolonged or extensive", waterboarding should not qualify as torture under the law. McCarthy continues: "Personally, I don't believe it qualifies. It is not in the nature of the barbarous sadism universally condemned as torture, an ignominy the law, as we've seen, has been patently careful not to trivialize or conflate with lesser evils".

Nevertheless, McCarthy in the same article admits that "waterboarding is close enough to torture that reasonable minds can differ on whether it is torture" and that "[t]here shouldn’t be much debate that subjecting someone to [waterboarding] repeatedly would cause the type of mental anguish required for torture".

I could agree with all of that.
 

Chucklehead, how long do you think it would take me to waterboard you before you admitted that waterboarding is torture?
 

Bartbuster:

20-30 seconds (hopefully at least a couple times). Obviously, no duly-authorized interrogation seeks to get subjects to admit it is torture.
 

If it would only take me 20-30 seconds to get you to admit to something that you refuse to admit otherwise, then it's clearly torture.
 

No, it's not. I will admit that egal classifications need to be clarified (I'd also prefer something akin to "torture warrants" proposed my Professor Dershowitz). I would probably "admit" I am a left-handed, red-headed female as well.
 

eagl = legal
 

Yes, it is clearly torture.

Whether we should use torture is a completely different question.

For the record, I'm very much in favor of waterboarding people who refuse to acknowledge that waterboarding is torture.
 

Bartbuster:

LOL! The difference, of course, being that I am not an Islamic terrorist with knowledge that could be used to prevent the loss of thousands of American lives. Back in the real world, waterboarding has been used with great discrimination by people who know what they're doing and has produced a lot of valuable information and intelligence.

Therefore, you haven't proven anything. Lots of things (which are "clearly" NOT torture and quite legal BTW) would get me to admit that waterboarding is torture. For instance, during the "Stimulus Package" debate, I offered to not post here anymore for a mere $1 billion USD. I would gladly admit that waterboarding is "torture" for half that (I may want that in gold bullion now).

Assuming that there's no debate about whether we tortured, though, why hasn't The One arrested and charged Bush/Cheney yet?
 

http://balkin.blogspot.com/2009/03/why-there-must-be-criminal.html
 

The difference, of course, being that I am not an Islamic terrorist with knowledge that could be used to prevent the loss of thousands of American lives.

That would make no difference to me.


Back in the real world, waterboarding has been used with great discrimination by people who know what they're doing


They have to learn somewhere. Learning on people who don't believe it's torture seems like a win-win situation.

and has produced a lot of valuable information and intelligence

I doubt they have produced anything more valuable that the results from waterboarding warmongering scum like you.
 

For instance, during the "Stimulus Package" debate, I offered to not post here anymore for a mere $1 billion USD. I would gladly admit that waterboarding is "torture" for half that (I may want that in gold bullion now).

The fact that you're a whore was never in doubt. However, it has nothing to do with torture.
 

Bartbuster (one last time):

Assuming that there's no debate about whether we tortured, though, why hasn't The One arrested and charged Bush/Cheney yet?
 

You should ask him.
 

Anyone else actually willing to answer my question (the record will note that I willingly answered ALL of Bartbuster's questions).
 

Anyone else actually willing to answer my question (the record will note that I willingly answered ALL of Bartbuster's questions).

# posted by Charles : 2:15 PM


I would answer your question if I knew the answer. Obama has not consulted with me on this issue.
 

"I don't know" is a perfectly acceptable answer then. Have you read the other thread on that topic and my best guess as to why Obama hasn't (and won't) prosecute Bush/Cheney?
 

I probably read it, but I don't recall what you said, and it's not worth the effort to read it again.
 

You see, that wasn't so difficult to actually answer, was it? Feel free to have the last word now.
 

Brian has suggested opening a criminal investigation based upon the allegations made by Mark Danner in his article "US Torture: Voices from the Black Sites. If we are going to open a formal criminal investigation on any White House, there damn well better be evidence to support of a prima facie case of actual criminal violations.

In order to determine whether there is a violation of law, it is helpful to start with the law - something with which ICRC and Danner could not be bothered.

18 USC 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...


Do any of the enemy allegations excerpted in the Danner article provide a prima facie case of a violation of 18 USC 2340?

I. PRELIMINARY MATTERS

Before we get to the facts alleged by the enemy, there are two big red flags for any prosecution here:

1) These excerpts are not actual quotes from the enemy.

None of the alleged enemy testimony excerpts from the Red Cross report are placed in quotes. Indeed, none of these passages use the religion laden and colloquial language that these al Qaeda leaders have used under other circumstances. Rather, these passages read like polished technical summaries of facts from an affidavit drafted by an attorney to support a brief or a motion.

Who drafted these passages?

Why wasn't the enemy quoted directly?

Are there transcripts or recordings of the actual conversations between the Red Cross reps and the enemy disclosing what Red Cross told the enemy, asked the enemy and what the enemy stated in response? If not, why not?

Did the Red Cross coordinate their visits with the enemy's attorneys? Did the attorneys visit the enemy prior to the ICRC visits? If so, we cannot know what the attorney's told the enemy because of the insane policy of permitting private meetings between outside parties and wartime enemy combatants.

2) Key allegations necessary to support a prosecution for torture are missing.

Fascinatingly, there are no allegations of imposition of severe pain or mind altering substances or the threat of death or the imposition of severe pain or mind altering substances. Quite to the contrary, KSM admitted that the CIA told him he would not be killed and the enemy noted various precautions to prevent severe pain or injury.

This leaves a big hole in any prosecution. While claims of severe pain by the enemy would not be dispositive under the reasonable person standard that would almost certainly be applied in a torture case, if the enemy themselves did not claim severe pain, a jury is unlikely to find any.

II. COMMON ALLEGATIONS OF FACT

The following allegations are categorically not torture: nudity, being strapped to a bed in a white room, being photographed, being shaved, wearing a diaper, wearing ear phones, being blind folded, being shackled, being fed Ensure, being placed in a box, varying the feeding schedule, playing music, playing static, or being kept awake - even if Danner considers these techniques "notorious."

Being kept in a cold room or splashed with water is not torture unless it causes severe pain or physical injury like hypothermia. There is no allegation of this.

Being slapped is not torture unless it causes severe pain or physical injury like hypothermia. There is no allegation of this.

Being slammed into a wall repeatedly is a completely new allegation that has not been previously reported to my knowledge. Prior descriptions of the CIA interrogation techniques never mentioned this and no prior detainees ever mentioned this. The photograph of the bedraggled KSM after interrogation do not show any marks or bruising consistent with being slammed against a wall repeatedly. Even if we take this allegation at face value, it appears that the enemy is admitting that steps were successfully taken to avoid inflicting severe pain and physical injury.

The descriptions of waterboarding appear to match the technique disclosed in the press.

However, the description does not resemble the forced introduction of water into the lungs and stomach imposed on our soldiers during SERE or in the water cure imposed by the Japanese during WWII, our troops in the Philippines or the Spanish Inquisition. This undercuts the claims of precedent that the CIA technique has been previously held to be torture.

Moreover, the enemy is obviously lying about withstanding the waterboarding for an entire hour (KSM) or repeatedly over days on end (Zubaydah). The panic imposed breaks everyone in a couple minutes or usually far less. The motivation for the enemy to exaggerate is that they do not want to admit breaking in moments or seconds and then spilling everything they knew.

We have debated at length whether waterboarding is torture. I will rely upon my previous arguments for the con position.

The descriptions of the long time standing technique also appear to largely match the technique disclosed in the press with the addition of handcuffing. Bin Attash allegedly claimed that he was placed in a standing position and had his hands handcuffed above is head so he could not sit down. Doctors examined him to ensure that his legs would not swell or the handcuffs would not cut into his wrists. When this happened, he was let down. This description does not indicate the imposition of severe pain or physical injury. Indeed, the enemy admitted that CIA doctors took pains to avoid those outcomes.

The enemy is again lying about the duration of the standing. Bin Attash claims to have stood for two weeks with only 2-3 breaks. His feet and legs would have swollen as the blood pooled after he had been standing for the first several hours as mine did standing in the turret of my Bradley during the Persian Gulf War. If doctors were measuring his legs to ensure swelling did not occur, he would have been rested every day to prevent swelling.

Likewise, bin Attash would have fallen asleep repeatedly during a two week period out of sheer exhaustion, causing the handcuffs to cut into his wrists. The doctors by the enemy's own admission would have had him brought down when this happened.

III. OTHER DISCREPANCIES

Both Zubaydah and KSM allege that the CIA informed them of interrogation strategies that were being applied to them. There is no way in hell CIA would be discussing this with top al Qaeda officers. Only in the movies does the antagonist discuss his plans with 007.

Rather, this suggests that the enemy's attorneys or the Red Cross were providing this information to Zubaydah and KSM. What other information was provided by the attorneys or the Red Cross prior to the statements offered by the enemy? Were these statements coordinated before hand through the enemy's attorneys?

KSM claims to have been "tortured" for a month. This would be completely contrary to all the previous reporting indicating that CIA needed and succeeded in breaking KSM quickly so they could exploit his knowledge of enemy identities and dispositions before the enemy moved. Indeed, we started rounding up other detainees around Pakistan about a week or two after KSM was captured.

These questionable allegations do not provide the basis for opening a formal criminal investigation. I might want to request that Red Cross provide all their information to see if there is more. If ICRC refused, I would drop the matter entirely.
 

Thank you, Bart. Let the rumble begin!
 

Of course, Bart doesn't acknowledge the crux here: these people were kept isolated from one another and could have neither corroborated stories nor been able to otherwise offer accounts that track so well with the torture techniques that we know occurred in other instances of abuse. Mark Danner said precisely this on Maddow the other night: http://crooksandliars.com/media/play/qt/7606/26746

For Bush apologists like Bart, however, no evidence is sufficient, and the more damning evidence only draws more vigorous carping. I, for one, am quite done entertaining the fancies of people who have been shown to be so very wrong--like Bush, like Cheney, and like Bart, their enabler.
 

musteion:

Did you even read Bart's posts? The terrorists could indeed be LYING! Bart pointed to other explanations for the curiously "consistent" stories, ranging all the way from training camps to their own ACLU attorneys.
 

musteion said...

Of course, Bart doesn't acknowledge the crux here: these people were kept isolated from one another and could have neither corroborated stories nor been able to otherwise offer accounts that track so well with the torture techniques that we know occurred in other instances of abuse. Mark Danner said precisely this on Maddow the other night: http://crooksandliars.com/media/play/qt/7606/26746

There are three ways the stories could have been coordinated:

1) The enemy's attorneys coordinated it ahead of time. The enemy's attorneys appear to be engaged in a unified defense and are not making deals where their clients are testifying against one another. Under such an arrangement, it is perfectly normal to discuss other defendants' testimony with one's client.

2) ICRC discussed its current knowledge of the CIA program and then asked the enemy what happened.

3) ICRC personnel (most likely attorneys) wrote what appears to be a summary of the enemy testimony that Danner quoted. Summaries of testimony tend to smooth out discrepancies that would be obvious in a transcript of the actual Q&A.

The descriptions of the basic techniques appear to be largely legitimate. The main problem I see is that the enemy is obviously embellishing the duration of the techniques. The duration of otherwise legal techniques is the argument being advanced as to why this is "torture."
 

The main problem I see is that the enemy is obviously embellishing the duration of the techniques. The duration of otherwise legal techniques is the argument being advanced as to why this is "torture."

# posted by Bart DePalma : 9:28 PM


Did the document indicate how the prisoners determined how long the torture lasted?
 

Little Lisa's bro reveals secrets of defense attorneys:

"There are three ways the stories could have been coordinated:

1) The enemy's attorneys coordinated it ahead of time. The enemy's attorneys appear to be engaged in a unified defense and are not making deals where their clients are testifying against one another. Under such an arrangement, it is perfectly normal to discuss other defendants' testimony with one's client.

2) ICRC discussed its current knowledge of the CIA program and then asked the enemy what happened.

3) ICRC personnel (most likely attorneys) wrote what appears to be a summary of the enemy testimony that Danner quoted. Summaries of testimony tend to smooth out discrepancies that would be obvious in a transcript of the actual Q&A."

With his vast experience as a DUI criminal defense attorney, little Lisa's bro divulges the methods that have brought him such success and renown among the defense bar and the high in Colorado and how they perhaps have been misused at the international level. How dare these attorneys use the very same techniques that provide justice to his DUI defendants. Why little Lisa's bro may be forced to go Shakespearian on us about what should be done with lawyers (excepting of course for his backpackness himself).
 

Mr. De Palma wrote:

"The following allegations are categorically not torture: nudity, being strapped to a bed in a white room, being photographed, being shaved, wearing a diaper, wearing ear phones, being blind folded, being shackled, being fed Ensure, being placed in a box, varying the feeding schedule, playing music, playing static, or being kept awake"

For the past 5 years, "torture" has been whatever the OLC decided it was and it seems your country is willing to put up with this redefinition of all sorts of words. However, international definitions are broader.

Many of the treatments you mention HAVE been considered cruel and degrading treatment and breaches of Article 3 of the GC.

Your 'clients' might want to avoid holidays in Europe from now on.
 

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