Balkinization  

Sunday, April 19, 2009

The Empty Circularity of the Lastest Batch of OLC Torture Memos

Brian Tamanaha

Defenders of the OLC torture memos have maintained for months that it is unfair to criticize Bush Administration lawyers for their “good faith” legal analysis, issued under pressure and the threat of additional terrorist attacks. Legal analysis often contains a margin of uncertainty, these defenders remind us, so the fact that the legal reasoning in the memos has been widely condemned as unsound does not show that the memos were written in bad faith. A criminal investigation of these patriotic OLC lawyers—Yoo, Bybee, Bradbury, Delahunty—for aiding the violation of U.S. laws against torture, we are told, would be a travesty of justice.

This defense was always a stretch, given the transparent weakness of the legal analysis in the memos (later withdrawn as faulty by the Bush Administration). With the latest release of torture memos, however, this defense completely falls to pieces.

The memos begin by repeating this claim: “Torture is abhorrent and universally repudiated, and the President has insisted that the United States will not tolerate it.” The legal analysis revolves around the prohibition of torture as defined in the statute (18 U.S.C. Section 2340(1)): “an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering…upon another person within his custody or physical control.” The memos examine the techniques utilized by CIA interrogators and declare that they do not violate the anti-torture statute.

It will be easy to show that the analysis in the torture memos is entirely circular, and ultimately empty. Before getting to that, here is the list of actions that were granted legal approval: manipulating food intake, stripping clothes, grabbing and holding face, slapping face, slapping abdomen, placing in stress position for hours (standing, sitting with hands above head, kneeling position), slamming head and shoulders against a flexible wall (called “walling”), dousing in stream of cold water, keeping in a “cramped” space (just enough room to stand or sit in darkness), keeping awake for days on end, and waterboarding.


More specifically, the memos approved the legality of the following interrogation practices:

1) throwing a prisoner’s head and shoulders against a flexible wall “twenty or thirty times consecutively when the interrogator requires…”’;

2) dousing detainee in constant flow of cold water; 41 degrees for no more than 20 minutes, 50 degrees for no more than 40 minutes, and 59 degrees for no more than 60 minutes;

3) sleep deprivation “may continue to the 70 to 120 hour range, or possibly beyond for the hardest resisters, but in no case exceed the 180 hour time limit.” (The prisoners were kept awake by chaining them in a standing position so that, if they dozed off, they would be awakened by the sense of falling and by the jolt of the weight of their body against the chains.);

4) a maximum of two waterboarding sessions (strapped to the board) a day on a prisoner, each session lasting no longer than two hours; no more than 6 episodes of waterboarding per session; and no single continuous dose of water exceeding 40 seconds;

5) for cramped confinement, “confinement in the larger space [standing room] may last no more than 8 hours at a time for no more than 18 hours a day; for the smaller space [sitting room only], confinement may last no more than two hours."

A look at this list prompts an obvious question: On what basis did OLC lawyers determine that these particular actions did not inflict severe physical or mental suffering (the legal standard for torture)?

Why not bounce the prisoner’s head against the wall 50 times? (The CIA claims that “walling” is not “significantly painful” because the wall flexed). Why can a prisoner be kept continuously awake for a week, rather than 5 days or 14 days? Why only 6 times per waterboarding session, with a maximum of 40 seconds each time? Why not 8 or 10 times per session (or 3 times) of 50 seconds each?

Whether these practices constitute “torture” is far more problematic than these obviously difficult questions alone suggest. A major complication arises because these techniques were utilized in combination. Thus, their combined effect in the context of interrogations is what must be evaluated, not the individual techniques in isolation (a 10 May 2005 memo was devoted entirely to the combined effect).

Recall that the memos were written because the CIA sought legal sanction for the actions of interrogators (apparently most of the techniques were already being utilized, so this amounted to retroactive legal blessing). The agents doing the dirty work, naturally, did not want to be charged with crimes.

The CIA came up with all of the techniques, including the limits, with input from the CIA’s Office of “Medical Services.” The techniques were taken from the military SERE—Survival, Evasion, Resistance, Escape—manual, used by the military to train U.S. soldiers in resisting torture.

Here is the circularity in the analysis: Time and again the OLC memos conclude that the use of these interrogation techniques do not amount to the intentional infliction of severe physical or mental suffering (the torture standard) based upon the CIA’s own finding that these techniques don’t cross that line. But that is precisely the legal question the CIA (purportedly) is posing to the OLC: Do the interrogation techniques violate the anti-torture statute?

Presumably, the OLC cannot answer the legal question by relying upon the CIA’s own determination that these techniques do not violate the torture statute. That is, however, exactly the analysis in the torture memos. This circularity is explicit in the following passage (March 10 memo), opining on the combination of sleep deprivation with other techniques:

This possibility [that sleep deprivation reduces pain tolerance] suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you [CIA] have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute ‘severe physical suffering’ within the meaning of sections 2340-2340A.


To summarize the above passage: the OLC concluded—as a legal matter—that the CIA’s combination of techniques does not violate the torture statute based upon the CIA’s assurance that it combines the techniques in a way that does not violate the torture statute. It doesn’t get more circular than that.

All of the recently released memos reason in this circular fashion. As the memos acknowledge, “there is no evidence” about the effect of combining these techniques. (Sleep deprivation studies exist, but, for obvious reasons, no studies examine the combined effects of sleep deprivation with waterboarding.). The OLC lawyers admit: “We don’t have any body of experience, beyond the CIA’s own experience with detainees, on which to base an answer to this question.” (March 10 memo).

Nonetheless, the OLC lawyers go on to conclude that “we do not believe that the use of the techniques in combination as you have described them would be expected to inflict ‘severe physical or mental pain or suffering’ within the meaning of the [anti-torture] statute.”

This “legal” conclusion, needless to say, cannot be drawn in the absence of any evidence about the effects of these techniques—but the OLC lawyers were undeterred by the complete lack of a factual basis for their finding.

On what grounds, in the final analysis, did OLC lawyers draw their “legal” conclusion that the specified interrogation practices did not violate the torture statute? The assurances of the CIA that 1) their interrogation practices did not inflict “severe suffering;” 2) interrogators were carefully trained and monitored to adhere to the limits (never mind that an IG report revealed that the waterboarding limits were exceeded); and 3) medical personnel were present during the interrogations—that’s the entire the basis for the OLC’s legal approval. When drawing their legal conclusions, rendering their purportedly independent legal assessment of whether the techniques violated the anti-torture statute, the OLC lawyers relied solely upon representations by the CIA.

Let me correct that last statement. The one independent evidence Bybee and Bradbury pointed to was that none of the many soldiers who underwent SERE training (waterboarding specifically) suffered permanent damage from the experience. Bybee and Bradbury admit that training circumstances are wholly different from that of a prisoner being waterboarding (while threatened by the investigators that they will “do what it takes” to get information); nevertheless, they suggest, it provides a basis to think that waterboarding does not rise to the level of torture. [Reality check: The May 5 memo (page 37) acknowledges that the trainees were waterboarded once or twice at most; by comparison, one prisoner was waterboarded 83 times in one month, and another prisoner was waterboarded 183 times in one month.] The suggestion that SERE training exercises in any way bear on the suffering of prisoners subjected to these interrogation techniques is so patently absurd that it does not merit a response.

This was not “good faith” legal analysis by OLC lawyers. It did not even qualify as “legal analysis.”

The empty circularity of the arguments in the latest batch of torture memos exposes what has long been suspected but can now be confirmed: These memos were rubber stamp approvals for CIA interrogators—get out of jail free cards—issued by an obliging cadre of OLC lawyers.

In an unintended irony, the most honest statement in the OLC memos, which were addressed to the CIA, was this standard closing line: "Please let us know if we may be of further assistance."



Comments:

"The memos examine the techniques utilized by CIA interrogators and declare that they do not violate the anti-torture statute."

Did the CIA interrogators provide the OLC with these techniques in writing, in detail? If so, are such writings available? If not, how were the techniques described to OLC, orally? Wouldn't the OLC lawyers require documents with sufficient specificity so that the memos/opinions they rendered would specifically address the validity of the techniques? Wouldn't a careful OLC attorney do so? Or were the techniques only generally described to the OLC? I mean, the memos/opinions issued by OLC attorneys were more serious than, say, tax planning opinion letters issued by attorneys that have been challenged by the IRS in courts and have gotten tax attorneys and accountants in trouble.
 

Shag,

The OLC memos refer to the written requests from the CIA, indicating that the CIA provided details about the techniques. As my post indicates, the memos make clear that the information supplied by the CIA in support of the request for legal sanction was the sole basis for the OLC decisions.

In answer to your question, I have not seen the actual CIA requests, and I doubt they have been made public. If anyone knows about this, please let me know.

Brian
 

First, rest assured, the OLC worked in good faith. As its website notes, it is "imperative that our opinions be clear, accurate, thoroughly researched, and soundly reasoned." It is not just a spin job factory; in fact, "candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers" is its watchword.

I think this should be brought out and repeated, since it adds force to those who suggest we should give them the benefit of the doubt. That is, that -- per a concurring opinion in U.S. v. Barker -- we are NOT dealing with a "fairly outrageous" opinion here.

Second, we are told here that the CIA requested the advice. Philippe Sands and others suggest that the memoranda were CYA moves to enable and continue specific activities. At the very least, putting aside treaty requirements, it warrants investigation.

But, Obama sent a message that even investigating the interrogators would be in bad form. They were just patriotically doing their jobs in stressful times (including in 2005?). It seems some might be (mis?)led into thinking that the CIA has clean hands here -- even if Bybee and Yoo do not -- without truly having a full picture.

Finally, if it truly is a "retroactive blessing," should we investigate etc. what happened before the memoranda were written? How did the interrogators assume what they did was correct?

People in the intel community are on record saying the rules of Geneva et. al. are explained to them, as is required under treaty, so how did they figure this sort of thing was okay, or close enough to risk it even before asking for more advice (cya, tomato/oe).
 

There is a school of thought championed by the unrepentant John Yoo and former CIA Director Michael Hayden that a president has expansive and unwritten powers made necessary by the emergencies of modern threats. The adherents to this school of thought are not sorry that President Bush created unlawful torture and detention programs. They are only sorry such secret programs have been revealed to a public they consider unworthy to share in secret government.

The proponents of the Yoo/Hayden form of government realize they are out of power for the moment, but hope the pendulum will swing back in their favor in a bit. Once they get back in power they will build upon what they started.

We are idiots to think we can just "move on" and forget the past. People such as John Yoo are waiting in the wings after some setbacks in the late Bush presidency just as Dick Cheney and Donald Rumsfeld waited in the wings after the Watergate debacle.

Their odious theories are not repudiated by simply trying to forget the past. Just a couple of months into the Obama presidency we've been suckered by a slight variant of the lie expounded during Bush's presidency. Under George W. Bush, too many Americans were willing to trade their liberties for the promise of physical security. Under Barack Obama a large segment of America is willing to trade their liberties for a promise of economic security. The guarantees on either promise are vaporous.

The best way to secure our liberties is to thoroughly and systematically repudiate the school of thought championed by the likes of Dick Cheney, David Addington, John Yoo, Michael Haydon, et al, is to prosecute all those involved in the Bush era torture conspiracy. Strip the lawyers and doctors involved in torture of their licenses. Put the torture architects on trial for violating the federal torture statutes. Americans and the rest of the world need protection from folks like these.
 

I predict that any claims of good faith on the part of these OLC lawyers would be shown to be patently false were we ever to see the contemporaneous communications between these lawyers and their clients in the WH. My guess is that you would see drafts of these memos being sent back and forth, with the ones sent from the WH being much annotated with "corrections" and "suggestions".

It has been reported that the Justice Department's IG (or is it OPR?), in the course of its investigation of this very question, was able to get copies of these communications. The reporting also indicated that this investigation resulted in a highly critical (and presumably highly damaging) report, and that this report has subsequently met with a great amount of anger and pushback from folks who have a personal interest in it never being viewed by congress or the public. Up to this point, of course, the report has been buried. It may never see the light of day, or if it does it may be whitewashed into such a form as to be irrelevant. I, for one, would very much like to see it.
 

You would think that no one had ever been waterboarded, sleep-deprived, subjected to forced standing, or any of these other methods, before the SERE program existed.

Ample records made by the victims of these practices exist. Some of them were victims of the Soviet purges. Some were U.S. pilots shot down over North Korea.

The failure to look to *any* such sources, strongly indicates that the CIA did not act in good faith.

But as I predicted at the VC's comment thread, the defense pattern is clear:

CIA: We acted in reliance on legal advice!

OLC: We acted in reliance on the facts presented by CIA!

This circularity would not stand up in any court of law worthy of the name, but for the political purpose of making sure no such court ever sits in judgment on these people, it will probably work.
 

Brian:

I believe that you are misreading the memos.

CIA adopted the SERE techniques for their coercive interrogation program. The limitations on these techniques that you wondered about were very likely developed by SERE to safeguard their students based upon their observations of over 20 years.

CIA sought legal advice from OLC as to whether the adopted SERE techniques fit the statutory definition of torture. To answer this legal question, OLC first needed CIA to provide them with a detailed set of facts to apply to the law. OLC sure as hell had no experience in the effects of coercive interrogation or SERE. It appears that CIA used the SERE student data to inform OLC of the likely effects of these techniques. For example, the distinction between muscle fatigue and pain or whether students suffered long term mental affects from a particular technique like waterboarding.

In sum, OLC did not ask CIA for their legal opinion, but rather the facts to allow OLC to offer a legal opinion. Thus, there is no circularity.

Of course, when CIA reports that the SERE data indicates that a particular technique does not inflict physical pain or extended mental effects, the OLC legal opinion becomes pretty self evident.

If this entire exercise appears to have a "counting angels dancing on a pinhead" quality, it is because the definition of torture was kept intentionally vague to accommodate a long American history of using coercive interrogation as recent guest blogger Will Levi has documented in his upcoming article. Medical science cannot measure physical or mental pain, so the term severe pain makes any legal determination of whether a technique violates the torture statute to be utterly subjective. OLC simply cannot be wrong because their opinion is as valid as anyone else's.

The legal defense these memos are really positing is the SERE Defense: Because our military does not torture its soldiers in SERE, CIA's use of SERE techniques under SERE guidelines against al Qaeda could not have been torture. Conversely, in order to find CIA guilty of felony torture for using SERE techniques, you must indict the SERE program as a twenty year criminal enterprise liable for tens of thousands of felonies against our own soldiers.

This is a pretty damn good trial defense.
 

I hope someone can explain to me how one knows when he has obtained all the information
a subject possesses and can stop torturing. If we must torture to persuade someone to give up
certain information, doesn't that indicate that we do not know in advance what the information is?
So how can we determine the point when the subject has told us all that he knows?

There would seem to me to be an important difference betwen inflicting pain and suffering on
one as training and doing the same to an enemy to extract information. The trainee knows that
his tormentors do not want to kill him. The enemy does not know that.
 

Brother No. 1:

Do you believe, on the basis of everything that you've seen to this point, that Yoo, Bybee, Bradbury, and others in their company still deserve to be treated with professional courtesy and respect? (Note that I distinguish treating a fellow human being with the respect that they deserve as a fellow human being from professional respect or courtesy. The latter would be evidenced by, inter alia, publishing their writings, inviting them to give speeches or lectures, or in any other way indicating that they have any status within the legal community (practical or academic)).

Have they not, by writing and endorsing these memos, essentially inscribed their own ostraka?
 

Bart,

Just to be clear: My claim is not that OLC was asking the CIA for its legal opinion. Rather, my claim is that the OLC was relying entirely on the limits established established by the CIA's Office of Medical Services to draw the line as to what amounted to "severe physical and mental suffering" (the torture standard). That is precisely what the memos indicate. And that is where the circularity arises.

As for your assertion that it is a strong defense to claim that these practices cannot be torture because we have been using the same techniques on our own soldiers in SERE training exercises, I will only make two points. There is a world of difference--as Bradbury explicitly admits--between a soldier who knows he is being trained--with awareness that the exercise will stop soon--compared to a prisoner who by design is being led to think that things will only get worse. Furthermore, the SERE training did not involve a combination of these techniques for weeks on end, as was the case here.

No doubt you understand that the difference between these situations-training exercises and prisoners undergoing interrogation--bears directly on the issue of "severe suffering."

If you think there is no real difference, then remember that soldiers are at most waterboarded once or twice (the memos specifically state this), whereas one of the prisoners was waterboarded 183 times. If you think the latter is not torture simply because the former is not torture--as you suggest--then you are missing something.

Brian
 

Farris W said...

I hope someone can explain to me how one knows when he has obtained all the information
a subject possesses and can stop "torturing."
The same way you know to stop questioning under any form of interrogation:

You start questioning concerning items of which current intelligence suggests the target should be aware.

The target will inevitably give you new information. You need to exhaust all possible avenues concerning that new information with the target to weed out inconsistencies and to obtain the fullest possible picture.

Then you get into a cycle where you run the new intelligence provided by the target by other prisoners and friendly intelligence sources to verify its accuracy and to obtain further intelligence. You take that new intelligence and run it by the target to verify it and to obtain further intelligence. The cycle continues until no further information is forthcoming.
 

Brian:

As for your assertion that it is a strong defense to claim that these practices cannot be torture because we have been using the same techniques on our own soldiers in SERE training exercises, I will only make two points. There is a world of difference--as Bradbury explicitly admits--between a soldier who knows he is being trained--with awareness that the exercise will stop soon--compared to a prisoner who by design is being led to think that things will only get worse.OK, let's explore that a bit.

Let us assume that the SERE student has perfect knowledge of the scope of the interrogation he will undergo and the al Qaeda does not (at least not until Mr. Obama informed him by releasing these memos).

This scenario assumes that the al Qaeda has an added fear of the unknown where his own mind works to defeat him by conjuring up a parade of horribles that may befall him. Given the medieval techniques with which al Qaeda is trained to torture to death its prisoners, those parade of horribles could be nightmarish indeed.

So what?

The torture statute only prohibits the CIA from committing the affirmative act of intentionally inflicting severe paid. The torture statute does not make CIA liable for the psychological pain the al Qaeda's mind is inflicting on himself, nor does it impose a duty on CIA to reassure the terrorist by providing him with the perfect information the SERE student hypothetically possesses.

Let's attack this from a different angle. Let us assume that CIA's policy is to treat the al Qaeda prisoner like a civilian criminal suspect with full constitutional rights. Because of his training to torture his prisoners, the al Qaeda is still likely to suspect the worse. Once again, CIA is not responsible for the mental baggage with which the al Qaeda prisoner enters interrogation.

BTW, SERE is designed to make the student believe that the instructors have gone off the reservation, are not following the rules and that the student is completely at these crazy peoples' mercy. Based on my chats with my brother and a couple others I know who have gone through this training, SERE is very successful in making you believe just that. Therefore, the psychological frame of mind of the SERE student is not necessarily much different than that of the captured al Qaeda.

Furthermore, the SERE training did not involve a combination of these techniques for weeks on end, as was the case here.How precisely do we know that these techniques were imposed for weeks on end? If the enemy was not trained to lie about torture and was telling the perfect truth, how precisely would he know how much time had passed?

The SERE techniques are designed to completely unmoor the target from his environment. His perception of time is warped with sleep deprivation and manipulation of lighting, feeding and interrogation schedules. He is not permitted to think straight by the application of white noise and heavy metal music. He is never comfortable because he is subject to techniques designed to inflict muscle fatigue.

In SERE, the students are generally broken within a couple days of this regime. The students themselves think that far more time has passed.

Furthermore, the purpose of using these techniques is generally to rapidly break the prisoner and obtain actionable intelligence before the enemy learns of the capture and has a chance to redeploy.

Khalid Sheik Muhammad is a case in point. While KSM claims to the Red Cross that he was tortured for months and waterboarded repeatedly, CIA claims that KSM broke within 90 seconds of being waterboarded once. I tend to believe the CIA because all available information suggests that instructors and trainees being waterboarded break in 30 seconds or less. We also have the indirect evidence that large numbers of al Qaeda were rounded up within days of KSM's capture.

Finally, it is important to remember the only reason to bring this question to Justice is to obtain a legal defense from potential prosecution under the theory that Justice will be barred from prosecuting an interrogator for acts that Justice assured the interrogator were legal. However, this defense will only work if the techniques given to OLC to bless are the ones that CIA is actually using. Otherwise, this exercise is fruitless.
 

Bart,

Your comments suggest that you have not actually read the memos--some of the questions you raise about the techniques are actually answered in the memos. For example, the memos explicitly admit that a prisoner was kept awake for 180 hours.

As for your brother's friend who underwent SERE training, please ask him if he was waterboarded 183 times, or even 83 times--the memos acknowledge that this was done to prisoners. Perhaps he can tell us whether he thinks waterboarding someone 183 times amounts to "torture."

Brian
 

In thinking about torture from a trial standpoint, it seems like the most direct evidence would be the testimony of the person subjected to the treatment in question. There must be tons of literature and first hand accounts by victims of similar treatments. If the OLC were in fact conducting a good faith legal analysis, you would think that they would look to the actual opinions of people subjected to these types of treatments as to their physical and mental pain and suffering. The OLC would also want to examine the medical records of the detainees to look for objective medical findings as to how detainees responded to the actual treatment. I would also want to examine the videotapes as it seems like the physical reactions of the deainees would be strong evidence for how judging how much physical or mental pain or suffering they actually experienced. I would also want to consult academic experts who have studied and written about torture to see what they had to say about how victims of coercive treatment experienced it. Of course, I would also want to look at US and international case law with respect to these particular treatments. You would also think legal experts in the State Department charged with interpreting and implementing torture statutes should have been consulted. The fact that OLC did little to none of this makes me agree that these memos were a rubber stamp.
 

Brian,

Excellent analysis -- very nicely done.

One thing I've been trying to point out here for a long time is that although the statute is badly drafted, the key to analzing its meaning is the word intended in the phrase "an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering," and that the question oif what is or isn't severe has an obvious answer: any amount ofsuffering which is beleived by the perpetrator tobe effective for his intended purpose is severe enoough. The word "severe" is in fact superflous for the simple reasoin that the intentional infliction of any suffering on a helpless unresisting prisoner is inherently severe and inhumane.

A straightfowards dictionary definiton underlines the point:

torture, n. The infliction of intense pain to punish, to extract a confession or information, or to obtain sadistic pleasure. -- torture, v.

7 Black's Law Dictionary 1498

Each case being defined by the intended purpose of the act. The antecedent treaties, Hague 1907, IMT Charter 1945, and Geneva 1949, all approach the crime the same way: prisoners are not to be abused for any purpose.

Clearly, the language "acting under color of law" implies that the offender must be acting purposefully for some unlawful purpose, and it necessarily follows that the offense resides strictly in the intent to realize that purpose, e.g. mens rea, since this it's hard to imagine how anyone could act under color of law negligently.

These people wrote logically certain proofs of their own crimes. The Obama administration's current posturings are absolutely unsupportable as a mattter of law, and absolutely foolish as a matter of politics.

And if they are so foolish as to maintain the position expressed by Rahm Emanuel on ABC this morning, I for one will not be supporting them any further, for they are right on the brink of actively aiding and abetting the crimes. President Obama has a sworn duty to faithfully enforce the laws. He is obligated by both the torture convention and Geneva to prosecute these particular crimes (and a great many other war crimes that have been committed). It isn't even remotely a close case, and the CIA / Mukasey arguments are nothing but fraudulent alibis.

The President himself is a smarter and better man than this. He needs to quit relying on the judgements of subordinates who have allowed themselves to be ensared into aiding and abetting these criminals because it seems expedient -- especially those of them who, like Robert Gates and Gordon England, are directly implicated in the crimes. He also needs to quit thinking that this has anything to do with politics. These crimes are beyond politics in the same way that slavery is ultimately beyond politics.

These crimes cannot be tolerated or excused. None of these people acted in good faith, and none of these memos represent anything that coulkd accurately described as legal advice. The acts were elaborate and systematic criminal violations of the US Code. The memos were frauds based on the preposterous political theories of a gang of fanatics led by Cheney and Addington. Bush of course gave them free reign and signed the orders.

This is NOT matter of retribution at all, it is matter of JUSTICE AND THE FUNDAMENTAL INTEGRITY OF OUR LAWS. These people set to deliberately nullify and violate those laws in deirect violation fo their sworn duty, and they MUST be prosecurted to the full extent of the laws, and not just for the torture, but for ALL of their crimes under 18 USC 2441 and related statues.

But I still believe Barrack Obama is a better man than this: he's goit to stand up for the law or he's going to up wind up making himself the biggest hypocrite in the history of this country, and that would be an absolute tragedy. Indeed, it could very well be the beginning of the end whenever the Republicans manage to worm their way back into power.

May God forbid it!
 

*The cycle continues until no further information is
forthcoming*
I see. So the instant we extract the last bit of
information the "target" has, we can stop pouring
water in his nose. I did not realize it was so simple.
 

"Perhaps he can tell us whether he thinks waterboarding someone 183 times amounts to 'torture.'"

Shrewd defense counsel might try to make the case (on a case-by-case basis) that assuming the first time may have been torture, the fact that the subject tolerated this 182 more times might suggest otherwise. Of course, that same shrewd defense counsel might make a similar case for gang rape.

But back to the OLC memos/opinions, if they are subject to public release, why not the documents they are based upon (subject to appropriate redactions for national security)?

Consider Circular 230's requirements for tax opinions. Consider securities law opinions. Despite "standards," too many opinions get too close to the "bright line" (and may even cross it) and too deep into grey areas. What client wants, is prepared to pay for, a legal opinion that may be contrary to what the client wants to do? All the client has to do is shop around for another attorney willing to opine favorably. An attorney reluctant to opine in support of the client, while serving as a gatekeeper, is not a whistleblower. There may be a temptation to stretch because of the economics of future business with the client. What are the standards for OLC attorneys in opining? Of course, OLC attorneys also face potential economic consequences, such as "there goes my judgeship."
 

Per Farris' comments, a NYT article might be of interest:

"The first use of waterboarding and other rough treatment against a prisoner from Al Qaeda was ordered by senior Central Intelligence Agency officials despite the belief of interrogators that the prisoner had already told them all he knew, according to former intelligence officials and a footnote in a newly released legal memorandum."

This sort of thing underlines reality as compared to "ticking time bomb" type thought experiments.
 

"This sort of thing underlines reality as compared to 'ticking time bomb' type thought experiments."

As beauty is in the eye of the beholder, justifying torture is in the ear of the listener of the ticking time bomb. Both can and may often be subjective - as well as at times, respectively, blind or deaf.
 

At least on VC there has been a debate about what is going on.

Professor Tamanaha's decision to open his post is a wecome first opportunity in this forum for an exchange of ideas.

I declare an interest: as a 65 year-old British lawyer, I must acknowledge that the British colonial experience included many examples of "dirty wars", "punitive expeditions" and the like in the course of which there were egregious examples of human rights violations of at least equal gravity to those now in issue. We should not forget that the very term "concentration camp" was invented by the British during the Boer Wars, or that the much criticised emergency regulations used in Israel are a straight reprint of similar regulations which each and every colonial secretary in our far flung colonial administrations had in a filing cabinet for the eventuality that the "natives" got out of hand.

Post 1945, with all the old democracies of Europe on their knees economically and to some extent also morally bankrupt, the USA became the leader of the free world - the only western power able to afford to project its military might on a world scale - as Britain once did when Rule Britannia! actually had some passing meaning - and, we hoped with more moral compunction.

Yet the mistakes we British made from about 1700 to 2000 including our post 1945 experiences in situations as diverse as Cyprus, Egypt, Iraq, Kenya, Malaya, Northern Ireland and Palestine (to name but a few) have been repeated elsewhere by successive US administrations, particularly but not exclusively, by those in office under the Reagan, and Bush II administrations.

One of the many lessons the UK has painfully learned over time is that the "take the gloves off" approach to the interrogation of all categories of detainees, be they in the criminal justice system, in the hands of the intelligence services, or in the hands of the military is always counter-productive. That is not to say that there have not been excesses even as recently as the campaign against the Provisional IRA for which the UK has more than once been found wanting in the European Court of Human Rights and in Iraq (as to which there have been prosecutions, large sums of compensation paid and there are on-going investigations and inquiries).

I wonder how many readers troubled to read the paper written by Will Levi who is studying for his JD at Yale and who guest blogs below.

Young Mr Levi acknowledges assistance from such newsworthy legal luminaries as, inter alia, Jack Goldsmith, Harold Koh, and Martin Lederman which alone makes the paper worth a read and the paper as a whole suggests that this is a young man who will go far.

But I confess that I instinctively recoiled a little when I saw that the paper was entitled "Interrogation's Law" since I have trouble with the use of the possessive in that manner and I was still more troubled when I found that the author found difficulty with interpretation of international treaties such as the Convention against Torture while not citing any of the quite extensive jurisprudence from jurisdictions outside the USA which ought to have informed the deliberations of Messrs Bybee, Yoo and Bradbury when they were called to give opinions as to what constitutes torture or inhuman and degrading treatment.

Mr Levi's paper is of value nonetheless because it acknowledges a pattern of abusive treatment of detainees going back to the cold war, even if its primary conclusion is, in my contention badly phrased:-

"Interrogation’s law — absolute bans on vaguely defined abuse — has provided the latitude that has, in turn, permitted the authorization of coercive interrogation since World War II"I disagree. The law is not unclear. There is nothing wrong with legal drafting which merely says "torture and inhuman and degrading treatment" are criminal and prohibited. Judges and juries are endowed with common sense and precedent.

What has constituted the problem is the existence of lawyers who have been prepared to write opinions purporting to authorise torture and/or inhuman and degrading treatment, instead of saying: "Gentlemen: any treatment of any detainee anywhere carried out with the objective of coercing from him any information of any kind is likely to be held to be either torture or inhuman and degrading treatment or both. You, the people in charge, do such things at your legal peril. Our advice is simple - don't even think about it. Confessions and intelligence may only be obtained by US government military or civilian persons from detainees anywhere in the world by humane treatment, respect for the detainee's rights, and patient, non-coercive interrogation.".

The work product of Messrs Bybee, Yoo and Bradbury seems to me to demonstrate an amoral mindset incompatible with the ethical duties of counsel to their client and to the administration of public justice.

"The Client" in this case ought not to be considered as "the Administration" but more properly "the Republic" and surely these gentlemen (if that is the correct word) have ill-served your Republic.

Given the far higher preponderance of lawyers in the top positions in US administrations, do not the law schools and the bar associations have some responsibility for what appear to have been much more serious professional failings than mere egregiously deficient legal scholarship?

And are Professor Yoo and Judge Bybee going to do their gentlemanly thing and resign the offices they now hold? And if, not, can they be pushed?

PS - What is Stephen Bradbury doing these days? Nothing of any legal significance I hope.
 

Brian Tamanaha said...

Bart, Your comments suggest that you have not actually read the memos--some of the questions you raise about the techniques are actually answered in the memos. For example, the memos explicitly admit that a prisoner was kept awake for 180 hours.

As for your brother's friend who underwent SERE training, please ask him if he was waterboarded 183 times, or even 83 times--the memos acknowledge that this was done to prisoners. Perhaps he can tell us whether he thinks waterboarding someone 183 times amounts to "torture."
You are correct. I did not read these comments on page 37 of the May 30, 2005 memo because they were redacted on the copy I printed off ACLU's site. It appears that the NY TImes reporters were left similarly ignorant by relying upon this redacted memo given they published a follow up article on this passage based upon a blogger report.

I concede that the SERE Defense cannot be used to defense these three instances that exceeded SERE parameters. For all other techniques applied to these prisoners and all techniques applied to all other prisoners that comply to SERE parameters, the defense would appear to remain.
 

Bart,

Isn't your defense a little like the bank robber who asserted "500 of the dollars I stole are mine, so I'm only guilty of stealing the 49,500"?
 

Bart,

The fact that a criminal thinks he has a viable defense to a charge isn't a reason to drop the charges:

They can tell it to the jury.
 

I'll add to Mourad's comment here the same point I made in the VC threads: that the whole point of Thomas Ricks's most recent book, Gamble, namely that the US began to have (limited) success in Iraq when we stopped the "gloves off" approach and began to treat the Iraqis as human beings who deserved our protection.
 

The law is not unclear. There is nothing wrong with legal drafting which merely says "torture and inhuman and degrading treatment" are criminal and prohibited. Judges and juries are endowed with common sense and precedent.====
For what little it is worth in the grand scheme, I concur.

The point of these _broad_ prohibitions is NOT what Bart suggests above.

The effort to cast the question or application of the standard foremost as a 'medical question' could well have been criminal and not in good faith.

I do not have the memos in my immediate recall, now, so I should be careful. But the lack of sufficient analytical detail of prior convictions, prosecutions and circumstances suggests that the writers were stylizing their analysis, I should think, in ways that proved harmfully insufficient.
 

Shag from Brookline said...

"Perhaps he can tell us whether he thinks waterboarding someone 183 times amounts to 'torture.'"

Shrewd defense counsel might try to make the case (on a case-by-case basis) that assuming the first time may have been torture, the fact that the subject tolerated this 182 more times might suggest otherwise.
Close. A shrewd defense counsel will use KSM's arrogance and refusal to admit that he was adversely affected.

The complete lack of claims of any sort of pain in the Red Cross reports was significant.
 

. . . "take the gloves off" . . . is always counter-productiveYep. The plain evidence shows that torture got us little and cost us enormously. Thousands of Americans lost their lives in Iraq as just one result. And the history of torture could have informed us of that before the fact.

Torture, it turns out, is not only cruel and criminal; it is also shortsighted and stupid. Our torture over the last decade will keep on costing us a great deal longer than that.

Of course OLC didn't have to explain any of that to an administration that didn't want to hear it anyway. They could simply have said, you asked the question, here's the answer: no it's not legal.
 

C2H50H said...

Bart, Isn't your defense a little like the bank robber who asserted "500 of the dollars I stole are mine, so I'm only guilty of stealing the 49,500"?

Not quite.

The SERE Defense would appear to apply to all of the techniques applied to 12 of the 14 high value al Qaeda and most of the techniques applied to Zubaydah and KSM apart from the exceptions noted in the memo.

For the exceptions concerning sleep and waterboarding, the prosecution cannot prove physical pain and is going to have a difficult time proving KSM and Zubaydah suffered extended severe mental pain.

These two al Qaeda are not claiming to Red Cross they suffered any mental pain, nevertheless extended and severe.

The CIA will have their supervising psychiatrists testify that the two al Qaeda did not suffer extended severe mental pain.

I do not recall the Red Cross noting that they observed symptoms of mental illness by Zubaydah and KSM.

The US Attorney would need to convince Zubaydah and KSM to admit severe mental pain and get expert psychiatrists to confirm the existence of mental illness that did not preexist the interrogation and cannot be attributed to other factors.

Otherwise, the prosecution is left with a case that argues, while the victims did not actually suffer severe mental pain, a reasonable person would have.
 

So you're in favor of trials then, Bart?
 

Just to share a counterview, Bart, if the SERE training techniques were so blase, why would there have been an effort to exclude certain 'criminals' from (a) the regular-way justice system, perhaps even one sensibly modified for security concerns or special evidence concerns or (b) the Geneva Conventions?

Rather, the context suggests that quite a few people were aware that these techniques were more severe. ("History will judge us harshly...", "...treated humanely..." - the confirming quotes are everywhere, all the way up to the President). *Everyone* _knew_ that they were on eggshells.

The CIA itself doesn't share what you put forward as a commonsense view, because they destroyed the very tapes that might further legitimize the fact that nothing "severe" was done, whatever might be alleged or confirmed by the detainees.

And, in fact, it's not clear that we ought to wait for a victim/detainee to allege harm before we had a thorough-going look at how a potentially innocent person might be treated "under law", right?
 

Will:

I don't favor trials. This discussion is all hypothetical as Obama has announced no CIA agent or doctor will be prosecuted, in fact will be indemnified, for following the OLC memos.
 

Bart,

What little I know of jury selection combined with what I've observed in hanging out on comment threads in various venues indicates to me that you are going to have your hands full finding a pool from which you can seat even one person sufficiently lacking in empathy and logical thinking to believe your spin.

Also, I don't think the "CIA psychiatrists" are going to be willing to destroy any hope of professional credibility (as well as blow their covers). That assumes that any sane person could possibly believe anything these people, who, contrary to the Hippocratic oath they took, participated in these activities. I don't think, if I were you, I'd bank on that.
 

Charles-

Thanks for your input. I'd like to hear back from Bart though. Bart, you still out there?
 

Little Lisa's bro still doesn't understand tongue in cheek re: Shrewd Defense Counsel (as he may consider himself), ignoring the gang rape segment. So he reports:

"The complete lack of claims of any sort of pain in the Red Cross reports was significant."

Does it have to be stated explictly that being waterboarded 183 times doesn't involve "any sort of pain"? Perhaps little Lisa's bro would volunteer for a mere dozen or so waterboardings to prove that waterboarding is not torture. If 183 times did not involve pain, what useful purpose did it serve the in-terror-gators?
 

Amicus said...

"Just to share a counterview, Bart, if the SERE training techniques were so blase, why would there have been an effort to exclude certain 'criminals' from (a) the regular-way justice system, perhaps even one sensibly modified for security concerns or special evidence concerns or (b) the Geneva Conventions?"

SERE Training is one of the most challenging in the military. It is hardly blase. However, actual torture as it is defined in law is far worse. This captured al Qaeda torture manual illustrates the sort of thing which is prohibited under law.

The Geneva Conventions prohibit coercive interrogation against POWs whose military complies with the laws of war as an incentive to observe the laws of war. There is no reason to remove that incentive or to grant this privilege to al Qaeda who treat their POWs according to the manual above.
 

BART DEPALMA-

Can I ask how you would feel about trials for those involved? It would seem you are in favor given the hypothetical defenses you have offered here... but I'd rather hear it straight from the horse's mouth! Care to share your thoughts on this?
 

Shag from Brookline said...

"Does it have to be stated explictly that being waterboarded 183 times doesn't involve "any sort of pain"?"

If the prosecution wants to survive a motion to dismiss after it rests, such evidence would be highly advisable. Never assume that your judge or jury is simply going to agree with your POV concerning things about which they have no personal experience.

"Perhaps little Lisa's bro would volunteer for a mere dozen or so waterboardings to prove that waterboarding is not torture. If 183 times did not involve pain, what useful purpose did it serve the in-terror-gators?"

The definition of torture does not encompass anything you or I would prefer not to undergo. The prosecution would have to prove each and every actual element of the crime beyond any reasonable doubt.
 

This comment has been removed by the author.
 

For the exceptions concerning sleep and waterboarding, the prosecution cannot prove physical pain and is going to have a difficult time proving KSM and Zubaydah suffered extended severe mental pain.I will certainly concede that it would be very hard to bring a criminal prosecution for waterboarding Khalid Sheikh Mohammed because of who he is.

But if the jury looked past that and looked at the merits, I have no doubt that it would find that waterboarding someone 183 times constitutes a repeated mock execution intended to inflict severe mental suffering, which is all the torture statute requires.

Indeed, in a civil suit, Mr. Mohammed would probably be able to get summary judgment on that issue if he got past all the immunity defenses.
 

The Geneva Conventions prohibit coercive interrogation against POWs whose military complies with the laws of war as an incentive to observe the laws of war. There is no reason to remove that incentive or to grant this privilege to al Qaeda who treat their POWs according to the manual above.

# posted by Bart DePalma : 1:25 PM
Baghdad, I'm pretty sure the GCs don't say "it's ok to torture if you think the other side is torturing.
 

We can discuss "hypothetical" trials all day long. As long as we remain civil toward each other. Now that Bartbuster has arrived, he may finally get Professor Tamanaha to shut off the last remaining comment threads.
 

Thanks for that contribution to the discussion Charles!
 

Dilan:

You are aware that any such civil suit would be defended by government lawyers and judgment, if any, paid by the U.S. taxpayers, right?
 

Will:

You're welcome.
 

You are aware that any such civil suit would be defended by government lawyers and judgment, if any, paid by the U.S. taxpayers, right?Talk about missing the point! I was simply rebutting Bart's claim that the elements of the torture statute wouldn't be met.

The reality is that for various reasons, I don't see much hope in there being any remedy other than political embarrassment for the Bush Administration's decisions. So no, I'm not necessarily saying that Mr. Mohammed should be able to prevail in a civil lawsuit. But that's a very different question from the one Bart posed, which is whether waterboarding someone 183 times meets the definition of torture in the US Code.
 

Will:

Prosecutors have discretion over whether to bring criminal charges based upon the likelihood of conviction, justice and the public interest.

1) In this case, the chances of conviction are low.

As a US Attorney, I would very likely not be able to lawfully prosecute this because my DoJ repeatedly and in detail advised CIA that these techniques were legal.

If this prosecution survived the initial motion to dismiss, I would consider nearly all of the CIA interrogation which remained within SERE guidelines as lost causes for the reasons I posted above.

That leaves me with the sleep deprivation and waterboarding of Zubaydah and KSM.

Sleep deprivation is not what the average person envisions as "torture," so my real case relies upon the repeated waterboarding.

With the CIA admission of the repeated waterboarding, I now think I have an actual case that would not be dismissed early in the trial by an average jury. However, I have the evidentiary problems that I discussed above and an even more difficult mens rea problem that I will discuss briefly now.

I have to prove that CIA has specific intent to inflict severe pain on these two al Qaeda. However, the weight of the evidence strongly suggests that CIA bent over backwards consulting with SERE to create a safety net to protect the al Qaeda and then ran the resulting program by my Justice department to ensure they were acting within the law. I cannot credibly counter that my Justice Department and SERE were involved in a criminal conspiracy to provide false cover for CIA.

2) Assuming that I have a prima facie case of torture, as a matter of justice, I would personally apply a necessity analysis to these facts. For example, a prosecutor can ethically decline to try a prima facie case of murder when the defendant appeared to be acting our of a necessity like defense of self or others, but does not really qualify for the affirmative defense itself. In this case, we have a balance between an intent to and probable success in saving hundreds of lives by rapidly breaking these al Qaeda to roll up the al Qaeda network against a violation of law which harmed these al Qaeda. For me, that balance is clearly on the side of CIA. For your average prosecutor who may not have my military family background, I still think the balancing test would be difficult to resolve in favor of al Qaeda.

3) Finally, I do not see how it is in the public interest to compel CIA to disclose a substantial amount or all of the intelligence it gained from these two al Qaeda to defend themselves from a rather questionable prosecution. The damage of informing the enemy of much of what we know about them would be enormous.

I am sure other attorneys here have other takes, but they would have to engage in a similar analysis if they are really serious about prosecuting this case.
 

Dilan said...

"But if the jury looked past that and looked at the merits, I have no doubt that it would find that waterboarding someone 183 times constitutes a repeated mock execution intended to inflict severe mental suffering, which is all the torture statute requires."

I would suggest that you have a better mock execution case if the waterboarding was performed only once. After Zubaydah and KSM underwent the waterboarding the first time and survived without drowning, the prosecution will have a difficult time claiming that they expected to drown when the process was repeated unless CIA was telling them they were going to drown them next time.
 

Bart noted: SERE Training is one of the most challenging in the military. It is hardly blase. However, actual torture as it is defined in law is far worse.======
Well, we agree that SERE training, if it is to be useful, has to approximate, if not simulate, real-world torture.

Of course, it is not at all obvious that what is 'defined in law' doesn't also preclude the use of SERE techniques on detainees, even if the full set of torture methods known to mankind is vastly more broad and worse than SERE curricula.

Heck, if we believe 'the official (cover?) story', the lack of clarity on the issue (for those who hadn't already made up their mind?) was the impetus of the OLC memos (and other memos).

While, I agree with making a utility argument surround the Geneva Conventions as much as anyone, I believe the intention was not to provide incentives/disincentives for a universal code of arms, but to get enemy soldiers/armies to more willingly surrender. The Geneva prohibitions/protocols related to civilian populations do not have a similar utility argument, of which I am aware (nor does the Genocide Convention, say). In any case, one hardly expects al-qa'ida to be surrendering, at least in the traditional sense of capture until the end of conflict. So, again, there seems to be little practical wisdom to sidestepping Geneva, unless one believes (believed?) in the utility of torture...

Along the same lines, if anyone really believed in the "SERE Defense", either now or at the time, there would be no reason to make a point of excluding people from Geneva protections (and I even believe in expanded 'administrative detention' and the usefulness of longer detentions as a matter of course for unwinding networks).

Rather, it seems almost plain that the impetus was to make room for a take-the-gloves-off approach, which went to far.
 

Thanks for your thoughtful response, Bart. I'm not sure we can have a reasonable discussion on this any further given your point of view that, for example, being waterboarded 183 times in a month is merely something that "one would rather not undergo." I do appreciate your response though, and I gather from such that you would be in favor of a trial wherein such defenses could be presented. In that sentiment at least, we are agreed! Thanks again,
 

I would suggest that you have a better mock execution case if the waterboarding was performed only once. Why? If someone were buried alive 183 times, or had a gun held to his head and "fired" 183 times, why would the repeated nature of it turn it into something other than a mock execution.

Yes, it's possible that by the 183rd time, the victim would know that he wasn't going to die, but wasn't your argument upthread that the subjective understanding of the victim isn't part of the torture analysis. If it's a mock execution, the fact that the victim eventually figures out he won't die doesn't really change that fact.
 

Fine (although Bart didn't say he would agree to trials; read as a whole, his comments favor NO trials).
 

Charles-

I can assure you, being a long-time lurker here on this site, that Bart needs no help from you in replying! Thanks as always for your valuable and on-point contributions though!
 

Will:

I realize that I went through the analysis, but did not answer your question about whether I would try the case as AG. Like the Obama Administration DoJ, my answer would be no. The Obama DoJ appears to be primarily concerned that CIA had relied upon prior DoJ advice and I tend to agree that this would be an enormous legal hurdle.
 

After reading the comments of Brian “Torquepalma”, I sometimes think that it would be gratifying to see him subjected to the techniques described in the OLC Torture Memos.

I even imagine that I might enjoy seeing him chained to a pole to prevent him from falling asleep, forced to defecate into an adult diaper, periodically changed by a stranger. Yet, as far as I know, “Torquepalma” is guilty of nothing more than holding odious opinions and lacking basic human empathy.

So, it’s not that hard for me to see how CIA agents, tasked with protecting American lives, might react when asked to interrogate people who they suspected of actively plotting to or actually killing Americans.

On reflection though, I feel shame at my thoughts. I realize that “Torquepalma” doesn’t deserve to be tortured simply for holding opinions that I find repulsive.

At least some of the people tortured under this program were no more guilty than “Torquepalma”. They held repulsive opinions, but knew nothing of value, and were guilty of nothing more than being in the wrong place at the wrong time.

That is why we should be a nation of laws, not men. Laws are supposed to be passed after serious reflection, and not in the heat of passion or anger. If followed, they keep us from doing things based on emotion that will later bring shame and disgrace upon ourselves.
 

Bart:

Thank you for (finally) answering the question. I thought that "I gather from such that you would be in favor of a trial wherein such defenses could be presented" was the complete opposite of what you were really getting at.
 

The definition of torture does not encompass anything you or I would prefer not to undergo. The prosecution would have to prove each and every actual element of the crime beyond any reasonable doubt.That it is a fact that our use of certain of the techniques, including but not limited to waterboarding, have exceeded the recommended SERE guidelines would seem to make a case a foregone conclusion. Though I see you're now slipping the slope into prosecutorial discretion, telling me that you see a possible endgame in stonewalling valid legal concerns.

Like the Obama Administration DoJ, my answer would be no. Holder has not said that he would not try the case, or that any AG would not. He said that it would be "unfair." Not the same thing, unless you can provide a cite to him saying what you think he said.
 

Bart-

Thanks for your reply.

How do you square these two statements?

1) "Like the Obama Administration DoJ, my answer would be no. The Obama DoJ appears to be primarily concerned that CIA had relied upon prior DoJ advice and I tend to agree that this would be an enormous legal hurdle."

2) "I concede that the SERE Defense cannot be used to defense these three instances that exceeded SERE parameters. For all other techniques applied to these prisoners and all techniques applied to all other prisoners that comply to SERE parameters, the defense would appear to remain."
 

Eric:

Obama's statement says "Nothing will be gained by spending our time and energy laying blame for the past." DOJ has agreed to provide free legal representation to CIA agents / doctors in any legal proceeding or congressional investigation related to the program and indemnify any judgment.

http://www.msnbc.msn.com/id/30249847/
 

AG Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.

The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.

To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.

http://www.usdoj.gov/opa/pr/2009/April/09-ag-356.html

What say you now, Eric?
 

After reading the comments of Brian “Torquepalma”I doubt you meant to refer to Prof. Tamanaha, who wrote the post, but the name suggests otherwise. You might want to clarify if it is a typo.
 

Will said...

"Bart-How do you square these two statements?

1) "Like the Obama Administration DoJ, my answer would be no. The Obama DoJ appears to be primarily concerned that CIA had relied upon prior DoJ advice and I tend to agree that this would be an enormous legal hurdle."

2) "I concede that the SERE Defense cannot be used to defense these three instances that exceeded SERE parameters. For all other techniques applied to these prisoners and all techniques applied to all other prisoners that comply to SERE parameters, the defense would appear to remain."

I am referring to two different defenses.

The first paragraph references a legal estoppel defense. Under this defense, a prosecutor who expressly advised a person that a certain act was legal cannot later prosecute that person for committing a crime by performing the act.

The second is a persuasive defense that essentially argues: what is training for our soldiers cannot be criminal torture when applied to terrorists.
 

Obama's statement says "Nothing will be gained by spending our time and energy laying blame for the past." This is not the same thing as saying they "will not* be prosecuted.

AG Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct. OK, for this one I'm going to have to go Bart on you. Weak, maybe, but I think it's a legitimate quibble that the statement about prosecutions is written in the third person. This is a DOJ press release, just say the words! Also, that he "stressed" it sounds a little weak.

But I do think that there is space for movement here. Sure, everybody up top is saying it won't happen, but it's not Obama's decision and Holder may not have a choice if it's between prosecution and impeachment. Yeah, I know, the "I" word, but it's germane. The law is the law.

Note also that Holder does not mention the Bush OLC/DOJ members of this clique, and furthermore deals only with the CIA component of the interrogation regime. That is to say, his statement is considerably less than full-spectrum immunity.
 

LOL! Shouldn't you liberals be more concerned about Holder "disclosing these memos consistent with our commitment to the rule of law." For everyone beside Eric (who realize what a defend and indemnify agreement means) aren't you concerned that Holder is NOT prosecuting CIA agents / doctors "consistent with our commitment to the rule of law" too?
 

Nick Jackson:

Are you going to seek IMPEACHMENT if Holder doesn't prosecute?
 

Bart-


But the situation that we are discussing doesn't fall under EITHER of those exceptions:

1) Even if you grant arguendo the advice in the memos could be reasonably relied upon-- the interregators went well beyond that.

2) 183 times in a month is not what happens in SERE.

You speak of defenses. To me, this suggests that a trial is appropriate in your mind. Otherwise, why bother crafting these rationales? Why is prosecution inappropriate?
 

Will:

Asked and answered, counsel. Trial is NOT appropriate. How many times does Bart have to answer that question?

Eric:

Your "tortured" interpretation of the Obama / Holder statements would allow for a DOJ federal prosecution AND DEFENSE (not just federal public defenders either) of, at least, CIA agents / doctors. The "indemnity" portion of this agreement would be superfluous, right? Just imagine all of the conflicts of interests. Even as a "hypothetical" it's getting a bit too silly for even me. As such, I guess my objections would be: assumes facts, incomplete hypothetical, and calls for a legal conclusion.
 

In other news, former VP Cheney has called for ALL the cards to be put on the table, revealing his request to the CIA to declassify additional memos that confirm the success of the interrogation tactics and which specific targets / attacks were thwarted:

“One of the things that I find a little bit disturbing about this recent disclosure is they put out the legal memos, the memos that the CIA got from the Office of Legal Counsel, but they didn't put out the memos that showed the success of the effort. And there are reports that show specifically what we gained as a result of this activity. They have not been declassified.”

“I formally asked that they be declassified now. I haven't announced this up until now, I haven't talked about it, but I know specifically of reports that I read, that I saw, that lay out what we learned through the interrogation process and what the consequences were for the country.”

“And I've now formally asked the CIA to take steps to declassify those memos so we can lay them out there and the American people have a chance to see what we obtained and what we learned and how good the intelligence was, as well as to see this debate over the legal opinions.”
 

Mark Field wrote:

After reading the comments of Brian “Torquepalma” I doubt you meant to refer to Prof. Tamanaha, who wrote the post, but the name suggests otherwise. You might want to clarify if it is a typo.Indeed, I meant to write Bart “Torquepalma”. Despite proofreading a half-dozen times before posting, I still managed to screw it up.
 

So much for keeping this a CIVIL discussion of the issues.
 

Charles-

Bart is quite capable of answering for himself. I'm not really interested in parlay with you, or I would have addressed you directly! Why do you feel the need to hijack a civil conversation between him and me? Your views are well known at this point, believe me
 

Charles is a high-maintenance commenter who grows lonely when not addressed.

... Re: mock execution & 183 times a month, we've learned that CIA came to exceed even the Bybee memo's limits and pour greater quantities of water that seeped into KSM's passages.

It would've been quite reasonable for him to fear that his torturers were going to ramp it up, up, up, until they went too far and drowned him. In fact, he would have been crazy *not* to fear that.

Similar cases of "a torture too far," tho not involving waterboarding, are already documented for some of our victims.
 

Will:

I am not "hijack(ing)" anything. Just pointing out that Bart already answered the question and asking you "How many times does he have to answer the same question" before you are satisfied. Maybe if you gave us all a number, like "three more times", then we could move past this.
 

Anderson:

Ad hominem personal attacks hardly contribute to CIVIL discussion.
 

Bart-

Maybe I'm being unclear, as other commenters seem confused. Assuming for the sake of argument that the treatment outlined in these OLC memos was appropriate and the DOJ will be going along with the idea that those who in good faith relied upon OLC memos will not be prosecuted... what about the persons who exceeded even the treatment approved by Mssrs. Bybee and Bradbury? Surely they at least should be criminally responsible?

As I said above-- the reported treatment of certain high-value detainees far exceeded the "acceptable" treatment outlined in the memos. The SERE defense doesn't hold much weight particularly in light of this 266 number we've been hearing. Why no prosecution for this?
 

"Ad hominem"? Quoi?

Which thread was it that terminated in several "where did everyone go?" comments from Charles?

Regardless, if I've described Charles's commenting style inaccurately, I'm sure those familiar with same will correct me. I'll bank my apologies in advance.
 

Anderson:

It's the nature of "personal attacks" which detracts from the substance of any CIVIL discussion. Assuming that the person is, in fact, a lying, no-good, “Torquepalma” reincarnated, he could still be correct. You've heard the saying "even a broken clock is right twice a day"?
 

An ad hominem argument, also known as argumentum ad hominem (Latin: "argument to the man", "argument against the man") consists of replying to an argument or factual claim by attacking or appealing to a characteristic or belief of the source making the argument or claim, rather than by addressing the substance of the argument or producing evidence against the claim.

The process of proving or disproving the claim is thereby subverted, and the argumentum ad hominem works to change the subject instead.
 

Will said...

"You speak of defenses. To me, this suggests that a trial is appropriate in your mind. Otherwise, why bother crafting these rationales? Why is prosecution inappropriate?"

A competent prosecutor considers all the likely defenses in determining whether the case should be brought to trial. Unless the prosecutor is acting out of political reasons to make a pyrrhic point, he or she will not proceed if they see a complete defense to the contemplated charge. As did the Obama DoJ, I consider the estoppel defense to be just such a show stopper. However, to be thorough, I ran down the other major defenses that I could think of at the time.
 

Ad hominem arguments are, therefore, ALWAYS invalid in syllogistic logic, since the truth value of premises is taken as given, and the validity of a logical inference is independent of the source making the inference. Please try to win the debate on the merits, Anderson.
 

By the way, I fully support Cheney's request to declassify any memos showing the claimed success of these tactics.

I suspect that such a declassification, however, will not redound to the benefit of Cheney's position. Still, if there really were success stories involving the torture tactics, I'd rather we have the real story than rely on leaks and general claims from former Bush Administration officials who have been very dishonest on war on terror issues.
 

Under this defense, a prosecutor who expressly advised a person that a certain act was legal cannot later prosecute that person for committing a crime by performing the act.===
At the risk of overposting, at a minimum, we need an accounting of just how accurate that statement is.

It's very likely that CIA Officers were NOT sat down with, given tea, and shown a memo, with deeply persuasive arguments.

It's entirely likely they were given an order and - possibly - a verbal assurance that it checked out, "legally".

For myself, I simply cannot believe that skilled interrogators did not know that they were quite possibly crossing new lines.

And whether you like it or not, especially among those who are trying to set-up command-and-control organizations, the last line of defense of liberty and freedom rests with the individual moral choices made ... at the bottom of the chain, not the top.

Put bluntly, you do not have to follow every order, whether offered "immunity" or not.

And I take that particular view to mean that we ought to hear publicly from these CIA officers, even if steps are taken to mask their identities and their testimony doesn't happen in a open chamber in front of camera.
 

Dilan:

I don't support it (but I completely understand Cheney's desire for a level playing field, especially since Obama has taken the unprecedented step of disclosing just half the picture). It is too important to protecting American lives to disclose ANY advantage to the enemy. I base my evaluation of each Administration based on what they actually do. So far, Bush's has been better than Obama's.
 

Amicus:

Oh, yeah, I'm sure the Democrats trying to make political hay of this issue will agree to that. Keep in mind that the appropriate House and Senate sub-committees have all the secret, sworn testimony they actually need on the issue.
 

Amicus:

The estoppel defense to which I referred is not an "I was following orders" defense. Rather, it is an equitable defense to prevent prosecutors from creating their own caseload by encouraging unlawful acts. It is a kissing cousin to the entrapment defense against similar activity by the police.

In order to win against this defense, Justice would have to argue that it was engaged in a conspiracy with CIA to manufacture this defense by providing bogus legal memorandum. While some here like to engage in this sort of fever swamp thinking, there is not a scintilla of public evidence to support such a theory.
 

Charles:

We're 7 1/2 years after 9/11. Isn't it time we stop referring to them as "The Enemy", as if we can decide any public policy issue involving terrorism with the state-of-war under-seige mindset that was present on September 12, 2001?

Seriously, I think that certain people simply get an erection every time they type "The Enemy". There's a nice good-vs.-evil, we-live-in-important-times feel to it.

In the real world, Al Qaeda is far less of a threat now than they were 7 1/2 years ago. And I really doubt that by disclosing leads that we learned 6 years ago, we are going to compromise any CURRENT investigations of Al Qaeda.

I further would posit-- and you conservatives will never accept this, but I am almost certain it is true-- that the Bush Administration constantly used secrecy as a convenient crutch to allow them to put inflated claims about the success of their policies out into the press.

Remember, we are now talking about KSM being waterboarded 183 times over a month, when the Bush Administration officials had a coordinated leak campaign several years ago, SWALLOWED WHOLE BY RIGHT WINGERS, that KSM was waterboarded once and talked within a couple of minutes. And when the Bush Administration had told the public that the "enhanced interrogation tactics" were only used to break up immediate ticking time bomb plots.

The point is, it serves the right wing to keep this stuff secret, because that is what allows them to continue to lie about it. And thus, even if there is SOME harm that is done by letting this stuff all out in the limelight, it is almost surely outweighed by the benefit of denying conservatives any more false talking points on this issue. We want the truth, and the right wing can't handle the truth.
 

Bart-


Any response to my comment of 5:17pm? Thank you for the civil parlay, btw
 

For instance, in the House: the Select Committee Chairman is Rush Holt (D-NJ). Those few Congressmen and -women are already too many when it comes to protecting American lives. I think the 9/11 Commission pointed out that leaks of classified information was a problem too.
 

Dilan:

No.
 

I'm saddened that ANY "American" would concede some potential benefit regardless of the harm to our citizens and their very lives. Is this some episode of The Twilight Zone?!
 

". . . even if there is SOME harm that is done by letting this stuff all out . . ."

Seriously, are you posting from outside the United States?
 

Dilan:

Cheney is selfishly putting the importance of his personal reputation above the requirements of national security in calling for memos summarizing the intelligence gained from these al Qaeda to be disclosed to the enemy. It is bad enough that Obama has provided al Qaeda with a complete and detailed chapter for their SERE manual on the means and methods of CIA interrogation by declassifying these DoJ memos. We sure as hell should not be providing any further assistance to the enemy to salve Cheney's pride.

However, it is worth noting that this intelligence would certainly be released to the enemy if CIA was forced to defend itself against criminal charges. The Obama DoJ is incompetent if it did not consider this eventuality in their decision not to prosecute.

I have no doubt that history will look far more kindly upon CIA interrogation of al Qaeda when this intelligence is eventually declassified some years from now, as it has on the investigations and prosecutions of Soviet agents in the 50s when the full extent of Soviet infiltration of our government was disclosed with CIA and KGB files after the Cold War. However, this rehabilitation of the CIA will have to wait until after we finish winning the war with al Qaeda. Meanwhile, Mr. Cheney will have to endure the slanders and brick brats.
 

This comment has been removed by the author.
 

Bart:

They don't even think it's a "war"! They can't comprehend that Obama's release of these memos (especially in conjunction with Obama's insistence that even this "torture" will not take place) put American lives at higher risk. One of them even ADMITTED he / she wants the info released ". . . even if there is SOME harm that is done by letting this stuff all out . . ."!!!
 

Remember, we are now talking about KSM being waterboarded 183 times over a month, when the Bush Administration officials had a coordinated leak campaign several years ago, SWALLOWED WHOLE BY RIGHT WINGERS, that KSM was waterboarded once and talked within a couple of minutes.That is bullshit and you know it. Right wingers didn't swallow that idea whole at all.

Something that tasty was chewed with loving care like the punchline of a "do you like seafood?" joke, so that every bit of flavor could be enjoyed.
 

Will:

I would need a much clearer timeline of events to give you an answer about whether CIA interrogation exceeded DoJ advice. There likely were oral requests for advice and oral replies before the bureaucratic machinery at DoJ drafted and vetted these released memos. These oral communications would also be evidence for an estoppel defense.

For example, there is a large gap between the 2002 Bybee memo and the later 2005 Bradbury memos during which the interrogations of Zubaydah and KSM occurred. It has been fairly widely reported that the CIA guidelines required CIA to get permission from on up the chain of command to proceed with each additional level of coercion. It would surprise me if the chain of command was not asking for legal advice as they proceeded for CYA and, due to the severe time constraints, that legal advice was probably delivered orally over the telephone or during meetings. CIA would need guidance within hours so they could break KSM as expeditiously as possible and roll up all the cells about which he had knowledge.

In sum, there is probably a lot more that has not been released.
 

Bart,

I'm sorry, but that is a farrago of nonsense.

1. It's highly likely that Cheney's operatives in the CIA will prevent the memos from ever being declassified, and that he doesn't actually intend to release them. Head fake.

2. Since the methods described are a) not being used anymore, b) weren't effective anyway (see a), and are c) illegal, since the memos were retracted, any planning on the part of AQ based on them would be wasted.

3. If the interrogators would stick to methods known to work and which are legal, we'd all be a lot safer anyway.

4. The excesses of the CIA and FBI were looked on positively? You mean, like the Church Commission?

5. The largest positive benefit that came out of the KGB archives was the long-delayed realization that lie-detector technology doesn't work. Aldrich Ames ring a bell?
 

C2H50H:

Even if Obama NEVER allows for the same technique to be used, al Qaeda, and now every other potential terrorist out there, knows a) that the next President may allow it and b) for the next 4-8 years, the standard terrorist SERE course need be no worse than re-runs from "Fear Factor". Your turn?
 

Seriously, are you posting from outside the United States?If I were, I'd be more worried about the threat of an Al Qaeda attack. Al Qaeda's only successful attacks since 9/11 have all been outside the US.

Charles, have you really never had your premises challenged before? We can't go on forever hiding in our closets worrying about "The Enemy", you know.
 

I have no doubt that history will look far more kindly upon CIA interrogation of al Qaeda when this intelligence is eventually declassified some years from now, as it has on the investigations and prosecutions of Soviet agents in the 50s when the full extent of Soviet infiltration of our government was disclosed with CIA and KGB files after the Cold War.That's a very selective characterization of history, Bart.

History doesn't look kindly on the execution of Ethel Rosenberg, for instance.

And it doesn't look kindly on Joe McCarthy's claims of communist infiltration in the State Department, and more generally on the broad claims that large swaths of American industry, culture, and government were dominated by communists bent on overthrowing the US government by force.

And it doesn't look kindly on the conservative overreactions to the Soviet threat, including blacklisting and the like. (Indeed, I suspect that the Bush torture program is going to look somewhat similar to Red Scare blacklisting-- i.e., a massive overreaction to a real but containable threat.)

History, at best, looks kindly at SOME aspects of conservative claims about communism in the 1940's and 1950's. And I am sure that some aspects of Bush's reaction to 9/11 will be viewed as necessary and justifiable by historians. (The war in Afghanistan is one example of this.) But your broad claim is completely unwarranted by the facts.
 

They don't even think it's a "war"! They can't comprehend that Obama's release of these memos (especially in conjunction with Obama's insistence that even this "torture" will not take place) put American lives at higher risk. One of them even ADMITTED he / she wants the info released ". . . even if there is SOME harm that is done by letting this stuff all out . . ."!!Charles, stop lying.

1. I didn't say that I did or didn't think it was a "war". I did say that staying in a perpetual 9/12/01 siege mentality leads to terrible decisionmaking. Things that may have been necessary years ago are no longer so necessary, and perpetually thinking about "The Enemy" may allow some conservatives to orgasm, but it doesn't help in clearly thinking about what the threat is 7 1/2 years out and what things make sense NOW.

2. It isn't that I can't COMPREHEND how the release of memos could put Americans at risk. It's that I think former Bush Administration officials have a consistent track record of BLATANTLY LYING about such threats for political purposes. So I see no reason to believe them when they claim a threat. And they have specifically lied, over and over again, about the torture policy. Notably, you totally ignored that point when I made it in my earlier comment. Obviously you are quite aware that this is true and have no answer for it.

3. I do think that conservatives have done tremendous damage to American national security by associating this country with torture, which surely far outweighs whatever benefit may have come from interrogation. So it is of paramount importance to stop conservatives from lying about the torture policies any longer. That will save American lives long term. Now, if that means that some stale, 7 1/2 year old investigation is partially compromised, yeah, that's a risk I think we need to take.
 

So, now you DON'T want classified information released ". . . even if there is SOME harm that is done by letting this stuff all out . . ."? Only if it is from ". . . some stale, 7 1/2 year old investigation . . ." that doesn't harm anyone? Thank you for that clarification (but I wasn't "lying" by simply pointing out your earlier, much broader, sentiments). Thanks for the ad hominem personal attack though.
 

e.g. 5:57 PM "We're 7 1/2 years after 9/11. Isn't it time we stop referring to them as "The Enemy", as if we can decide any public policy issue involving terrorism with the state-of-war under-seige mindset that was present on September 12, 2001?" Your words, Dilan, not mine.
 

To avoid any potential confusion, that latest post was an example of Dilan's own words that leads me (and, I would argue, any reasonable person) to conclude he / she does not think we are currently at "war" with terrorists. An example of a "personal attack" would be the claim that I am lying about any of that.
 

While some here like to engage in this sort of fever swamp thinking, there is not a scintilla of public evidence to support such a theory.----
I suspect that encouraging unlawful acts is _exactly_ what went on, frankly.

Evidence?

Well, almost everyone who looks at these memos comes away with a sense that the 'managerial' attention and the effort put into Bush's DOJ analysis was seriously sub-par.

And, isn't that how it typically goes, when you want to get something done but don't want to really set-up a process with enough time, resources, and talent to get to a fully dispositive answer?

You delegate it to those reasonably far down the chain with just enough ambition and credibility, yet subject to just enough 'general pressure' to come up with a solution that "fits".

It makes no sense to argue that it is a security risk to publish these memos, while suggesting that a level playing field implies that we return torture-with-torture. If you want torture to be part of some bizarre level field, or a schema of battlefield incentives/disincentives, then ought one not broadcast one's prowess?

At a minimum, the OLC might well have concluded that the law did not fully embrace any extension of SERE to detainees and that if the Administration wanted clarity or more authority for a unique threat or set of circumstances, they needed to go to Congress to get it.

With any luck, out of that more thorough-going process, no one might have been waterboarded in your name, no "black sites" might have operated in ways that only put lawful participants in war additionally at risk, and hundreds of millions of hard-earned taxpayer dollars never wasted on facilities at a now infamous installation, Gitmo.
 

So, now you DON'T want classified information released ". . . even if there is SOME harm that is done by letting this stuff all out . . ."? Only if it is from ". . . some stale, 7 1/2 year old investigation . . ." that doesn't harm anyone? Thank you for that clarification (but I wasn't "lying" by simply pointing out your earlier, much broader, sentiments). Thanks for the ad hominem personal attack though.Charlie, I don't believe that there are any fresh investigations taking place based on waterboarding that happened in 2002 and 2003. By definition, any lead we are still pursuing is quite stale.
 

To avoid any potential confusion, that latest post was an example of Dilan's own words that leads me (and, I would argue, any reasonable person) to conclude he / she does not think we are currently at "war" with terrorists. An example of a "personal attack" would be the claim that I am lying about any of that.Calling a liar a liar is not a personal attack, Charles. It's a public service.

You misrepresented what I said. I have now said twice that my point wasn't to deny the "war on terror", but to deny that THINKING about it as a war is a productive way of dealing with terrorism 7 1/2 years after 9/11.

Despite hearing that twice, you have chosen to continue to misrepresent my position. That does, indeed, mean that you are lying.
 

THE WAR PRAYER
by Mark Twain

O, Lord, our God, help us to tear their soldiers to bloody shreds
with our shells.

Help us to lay waste their humble homes with a hurricane
of fire.

Help us to run them out roofless with their little children.

For our sake, who adore Thee, Lord, blast their hopes, blight
their lives, protract their bitter pilgrimages, make heavy their
steps, water their way with tears, stain the white snow with
the blood of their wounded feet.

We ask it, in the spirit of love, of Him Who is the source of Love.
.....................................AMEN
 

If we insist that they prosecute they will prosecute. I draw your attention to the Society of American Law Teachers' letter released today on the torture memos to President Obama.

http://www.saltlaw.org/human-rights-0

Best,
Ben
 

An alternate set of procedures
Is what we're applying right now.
So please don't confuse this with torture.
That's something I'd never allow.
I know when you feel you are drowning,
You're thinking, "They're torturing me."
But torture is not what we call it,
So torture it simply can't be.
 

Dilan:

I am not "lying" anymore than Jack Balkin is with his latest headline: "Cheney Supports Truth Commission". Regardless, look up the definition of ad hominem argumentation. Even if I am lying, you are changing the subject as to the merits of what I am saying.
 

Latest thread (to allow comments):

http://balkin.blogspot.com/2009/04/is-obama-really-serious-about-upholding.html
 

I am not "lying" anymore than Jack Balkin is with his latest headline: "Cheney Supports Truth Commission". Regardless, look up the definition of ad hominem argumentation. Even if I am lying, you are changing the subject as to the merits of what I am saying.Charles, you apparently don't know the definition of "ad hominem" or simply see it as a convenient crutch to use whenever someone points out how dishonest you are being. If you are making an argument, and you deliberately misrepresent the other person's position, the other person's pointing that out is not an ad hominem argument.

An ad hominem argument is something like "yeah, well your mother wears army boots!" (or some more profane, modern version of it). I.e., a personal attack that has NOTHING to do with the topic being discussed.

You have no answer to my actual argument, so you sit there lying about how I "really" said we aren't at war against Al Qaeda. That's the issue here.
 

This comment has been removed by the author.
 

Dilan said:

Remember, we are now talking about KSM being waterboarded 183 times over a month, when the Bush Administration officials had a coordinated leak campaign several years ago, SWALLOWED WHOLE BY RIGHT WINGERS, that KSM was waterboarded once and talked within a couple of minutes.
Perhaps that is true, and they just did the other 182 waterboardings for fun.
 

Bart DePalma:

CIA sought legal advice from OLC as to whether the adopted SERE techniques fit the statutory definition of torture. To answer this legal question, OLC first needed CIA to provide them with a detailed set of facts to apply to the law.As has been pointed out, the opinion sought was whether the techniques would cause "severe pain". The extent of the lawyering here was to state that this was the standard. But the bulk of the memos was to assert a factual claim: to wit, that the techniques did not cause such severe pain. But simply asserting such is hardly scholarly legal opinion.

Cheers,
 

You start questioning concerning items of which current intelligence suggests the target should be aware.

The target will inevitably give you new information. You need to exhaust all possible avenues concerning that new information with the target to weed out inconsistencies and to obtain the fullest possible picture.


You need to exhaust the detainee. And then the interrogators. Then you bring in new interrogators to start all over again to "exhaust all possible avenues" that interrogation concerning the "new information" elicited. And so on. Ad infinitum (or until the doctor steps in ans says, we'll need to take a break and resume when the detainee has regained consciousness. So has it always been with such.

Cheers,
 

The most chilling thing that "Bart" has ever said:

The cycle continues until no further information is forthcoming.
No further information was forthcoming. The interrogation ceased.

Cheers,
 

The torture statute does not make CIA liable for the psychological pain the al Qaeda's mind is inflicting on himself...

This has echoes in the memos of so-called "self-inflicted pain". If the detainee just keeps standing/squatting in a certain position for enough hours, no pain from the restraints. It's all the detainee's fault, and who could possibly hold the CIA to account for what the detainee did to himself, eh?

This is similar to another dodge used by those that would justify torture: The torture is entirely voluntary and self-inflicted! All the detainee has to do is answer every question fully with answers satisfactory to the questioners. Full co-operation? Then no torture. Problem solved. And if not, the detainee brought it on himself; you can't go blaming the CIA for what the detainee forced them to do....

Cheers,
 

The torture statute does not [...] impose a duty on CIA to reassure the terrorist by providing him with the perfect information the SERE student hypothetically possesses.

Which is why threats of death are perfectly permissible as long as no one actually kills anyone.

Cheers,
 

Bart:

The estoppel defense to which I referred is not an "I was following orders" defense. Rather, it is an equitable defense to prevent prosecutors from creating their own caseload by encouraging unlawful acts.

Are you suggesting that Dubya's OLC wrote these memos for the very purpose of inducing what they knew to be illegal behaviour? I'd agree, under such circumstances, that such a defence might be justified ... but then you have to consider what should be done with the OLC people who did such. What do you suggest?

Cheers,
 

BTW, and slightly off-topic:

For those irritated by Blogger's latest bug, you can get a break between italicised, quoted material and your subsequent comments by doing this:

<i>[lots of text that you want to quote with italics to indicate that it is a quotation]
<br></i>The text of your reply.

Hope that helps keep things legible and in the fashion we were used to before Blogger "fixed' things....

And use preview (something that I must admit I do too seldom due to impatience).

Cheers,
 

"The most chilling thing that 'Bart' has ever said:

'The cycle continues until no further information is forthcoming.'"

Little Lisa's bro may be confusing waterboarding with enemas.
 

Shane and Mazzetti's NYTimes front page article today "In Adopting Harsh Tactics, No Inquiry Into Their Past Use" reveals much more to be considered in this debate. Did the memos/opinions of Yoo, Bybee et al in OLC reflect this lack of inquiry? If not, why not? Legal opinions often address past practices if relevant, even when not disclosed by the client. Was this treated as a tabula rasa situation for the Bush/Cheney Administration? In my earlier comments I had stressed the importance of documentation provided by the CIA (and others) to Yoo, Bybee et al at OLC in formulating their memos/opinions and the need for public release of such documentation (subject to national security redactions - but not to save asses). This may with sunlight turn out to disclose the old GIGO that we were cautioned about regarding computers.
 

Latest Tamanaha thread does not allow comments.
 

By the way, OLC did not rely exclusively on CIA self-reporting in these memos. For instance, the 180-hour limit on sleep-deprivation came from a completely un-related, scientific study of VOLUNTEERS who were, in fact, able to stay awake that long with no "severe physical and mental suffering".
 

Now that thread has comments open:

http://balkin.blogspot.com/2009/04/how-we-know-that-olc-torture-memos-were.html
 

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