Balkinization  

Friday, February 22, 2008

Plus ça change . . .

Marty Lederman

Alas, there's nothing new under the sun. Here's Karen Greenberg on recognizing Steven Bradbury in the Torture Museum. And Paul Kramer, with a great story about the uncanny historical precedent of our waterboarding (and its justifications) in the Philippines at the turn of the . . . Twentieth . . . Century.

Comments:

This comment has been removed by the author.
 

Marty, thanks for the great links. Nice to know that the sheen on the Administration's arguments comes from the polish of a century and more.
 

This comment has been removed by the author.
 

Marty:

I thought we had finally established the facts of the waterboarding which CIA used on KSM & Co.

Why then do you keep linking to patently dishonest articles such as the one penned by Ms. Greenberg?

Bradbury corrected the Dem committee chairman's false innuendo that the CIA inflicted on KSM & Co. the same "water cure" practiced by the Spanish Inquisition and our troops in the Philippines. ALL the evidence in the public record provided by people who have actual knowledge about the nature of CIA waterboarding backs up Bradbury.

Greenberg's response to Bradbury's correction is to simply repeat this lie in more detail:

It would inform you that, over the course of these centuries, several water torture techniques were developed, one of which involved "inserting a cloth tube into the mouth of the victim [and] forcing it as deep as possible into his throat. The tube was then filled slowly with water, swelling up and choking the victim." This is, in fact, an almost exact description of what has been described as CIA-style waterboarding. Former interrogation expert Malcolm Nance, once an instructor for the U.S. military's SERE (Survival, Evasion, Resistance, and Escape) training program -- said to have been the template for some of the interrogation techniques the Bush administration developed -- himself experienced waterboarding.

There is absolutely no evidence that the CIA forced water into the lungs and stomachs of KSM & Co as was the case in the medieval torture described by Greenberg or the SERE training described by Nance.

Greenberg coflates the medieval water cure techniques she allegedly saw in a museum with the Nance SERE technique, dishonestly uses the passive voice without identifying any source to imply that the Nance SERE technique is what the CIA used on KSM & Co., and then falsely concludes that the CIA practices the parade of medieval water cure horribles.

Such bald faced dishonesty has no place on a reputable legal blog.
 

Such bald faced dishonesty has no place on a reputable legal blog.

# posted by Bart DePalma : 9:56 AM


You won't be missed!
 

I suppose we could ask KSM et al. how they were waterboarded -- except the feds would probably argue that that's a state secret.

Bart, much to my surprise, misses the entire point of Greenberg's article, which is that whether waterboarding is "torture" or "torture lite," water in the lungs or not, it's still torture, it's still abhorrent, and it's still despicable.

A side note: I have never understood the alleged use of Saran Wrap in CIA waterboarding, which supposedly prevented any water from entering the body in a way that, say, cloth would not.

If you cover someone's nose and mouth with Saran Wrap, you're already suffocating 'em.
 

Such bald faced dishonesty has no place on a reputable legal blog.

Yet the very video you linked in the thread you mention above shows SF people demonstrating water torture of exactly the sort that requires the entrance of water into the mouth and nose. I assume that they've done it before, and if they have, what assurances do we have that those practices haven't occurred in CIA contexts, as well?

(Note that "the government says we didn't" doesn't fly anymore. The government said we didn't use Britain to refuel our rendition flights, either, but apparently that wasn't true.)

You can make the case that the third technique (involving saran wrap) prevents water from entering the nose and mouth. In order to do this, of course, it requires that no air enters the nose and mouth.

Which mock execution approach do you prefer: death by drowning or death by suffocation? Either way, it's clearly forbidden activity, and something our country shouldn't be associated with.
 

anderson said...

Bart, much to my surprise, misses the entire point of Greenberg's article, which is that whether waterboarding is "torture" or "torture lite," water in the lungs or not, it's still torture, it's still abhorrent, and it's still despicable.

No. Greenberg spends the entire piece making false comparisons of past water cures to the CIA technique. Here discussion of "torture lite" assumes that the CIA is practicing past water cures and sarcastically notes that these water cures are not as bad as the Witch's Billy Goat, the Rack or the Garrote.

The telling point is that many, if not most, opponents of CIA waterboarding do not use the facts in order to make their claim that waterboarding is torture. After all, spending less than five minutes panicking terrorists to save lives just does not sound all that bad to most people. To bolster her argument, Greenberg dishonestly claims that the CIA is actually practicing something far worse than is actually the case.

A side note: I have never understood the alleged use of Saran Wrap in CIA waterboarding, which supposedly prevented any water from entering the body in a way that, say, cloth would not. If you cover someone's nose and mouth with Saran Wrap, you're already suffocating 'em.

Go watch the Harrigan video to which I linked back on the last thread on this subject. The saran wrap is not used to cut off breathing. It is merely laid on the face. Harrigan was talking after the saran wrap was laid on his face and before the water was applied from what looks like a gravy dropper. The weight of the water rolling off the wrap cuts off the air for however many seconds it takes to engage the gag reflex and panic the prisoner.

No water is forced into the stomach and lungs to inflict physical pain and injury as Greenberg falsely claims.
 

This comment has been removed by the author.
 

pms_chicago said...

BD: Such bald faced dishonesty has no place on a reputable legal blog.

Yet the very video you linked in the thread you mention above shows SF people demonstrating water torture of exactly the sort that requires the entrance of water into the mouth and nose. I assume that they've done it before, and if they have, what assurances do we have that those practices haven't occurred in CIA contexts, as well?


This is a "when did you stop beating your wife?" argument.

I could ask in return what assurances we have that you do not beat small children and steal their candy.

I do not do the innuendo. I deal in facts as proven by evidence.

There is no evidence offered by a person with knowledge that the CIA used a "water cure" which filled the prisoners' lungs and stomach with water.

If you have some such evidence, feel free to post it.
 

Baghdad, do you think I could waterboard you into admitting that you played a key role in the 9/11 attack?
 

And why have you stopped updating your blog?
 

Classic Baghdad Bart...

The saran wrap is not used to cut off breathing.... The weight of the water rolling off the wrap cuts off the air

In Bartworld the saran wrap is actually saving the prisoner from drowning!
 

The weight of the water rolling off the wrap cuts off the air for however many seconds it takes to engage the gag reflex and panic the prisoner.

I can't load the video, but this makes little sense to me. How are we breaking people in 10 to 15 seconds if all it amounts to is cutting off their air supply for that long? How is there any "gag reflex" if nothing's in the mouth?
 

anderson:

You can watch retired SF impose three different waterboarding techniques on reporter Steve Harrigan here.

Phase I is close to what Nance describes, but was cut off before any real amounts of water were forced into Harrigan's stomach and lungs.

Phase II places a cloth over Harrigans mouth, but leaves his nose exposed.

Phase III is very close to what has been described as the CIA practice - laying cellophane over Harrigan's mouth and nose and then running water over it from what looks like a gravy dropper.
 

I think everyone here can get a chuckle out of this cartoon.
 

Baghdad, if I didn't know beter I'd think you're censoring your blog again.
 

I watched the video. It appears that pouring water on the prisoner's face causes a reflex inhaling. When they do that they suck in the cellophane. If that isn't a fake execution, what is?

Baghdad, do you think I could waterboard you into admitting you played a key role in 9/11?
 

Now, here is a classic Friday-afternoon news dump for ya ...

An internal watchdog office at the Justice Department is investigating whether Bush administration attorneys violated professional standards by issuing legal opinions that authorized the CIA to use waterboarding and other harsh interrogation techniques, officials disclosed today.

H. Marshall Jarrett, counsel for the Office of Professional Responsibility, wrote in a letter to Democratic lawmakers that his office is investigating the circumstances surrounding Justice documents that established a legal basis for the CIA's interrogation program, including a now-infamous memo from August 2002 that narrowly defined torture and has since been rescinded by the department.

"Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys," Jarrett wrote.


(Via the indefatigable Howard Bashman.)
 

anderson:

Can you spell political C Y A?

CIA sought DOJ legal cover for their interrogation program and now DOJ is seeking legal cover from their IG.

Lawyers seeking blessing from other lawyers simply to give a legal opinion.

Insane.

I am liking my mountain practice more and more. DC is a partisan snake pit.
 

I see your CYA point, Bart, but I am skeptical; the AP story says that the investigation has been ongoing for "several years," which sounds more like someone's trying to do the right thing & getting nowhere under the Gonzales regime.

A CYA opinion could've been generated much faster.

snake pit

Ah, the next perfectly legal interrogation tactic?
 

"I do not do the innuendo. I deal in facts as proven by evidence."

Where is the evidence that proves the facts regarding the CIA's waterboarding techniques or regarding how many persons were subjected to those techniques, and for how long?

The government's claims regarding these matterss are just that--claims--and, lacking the evidence you claim to value, these claims may be considered to have no more credence than so many other claims of theirs which have been shown to be untrue...beginning with their false claims used to foment war against Iraq, and including their false claims as to the "guilt" of so many of the captives presently or formerly held at Guantanamo.
 

Bart, love the xkcd comic; know that feeling all to well.

That said, uh, well, you _do_ often seem to operate by innuendo, insinuation, and direct proclamation in absence of supporting evidence. Case in point, you say "you deal in fact" then turn 180 degrees and say there are no such facts in evidence for the present matter. Absent fact we only have inference. Yours is premised on a trust of the government or perhaps a desire to absolve same. Others eschew such premises.

Waterboarding, water cure, water torture, supervised and safeguarded, or slapdash and lethal; it's all evil, and you clearly stand in favor of it. You seem not to believe in anything as abstract as inalienable rights of all persons, but instead only enforceable privileges. That's convenient so long as you are a member of the group doing the enforcing. Some of us strive for more.
 

First of all, I agree with Robert Cook. Where exactly is the evidence, the signed and stamped and logged papers that document the tortures these prisoners underwent? Where are the audio or videotapes? Oh, that's right, the videotapes were destroyed!!
All we have is the testimony of the CIA agent. That's fine when we have no solid reason to disbelieve him, but the destruction of the videotapes introduces very, very strong reasons for skepticism.
Second, Bart continues to harp on negligible distinctions-without-a-difference. If someone is waterboarded or gets the water-cure or just gets his head held underwater, what the #$@% difference does it make!?!?!
US personnel are physically harming an enemy in order to force information out of him. The idea that his pain must reach a certain threshold in order to "count" as torture is $#%@&&!!!
 

Yeah, the cartoon was funny.
 

robert cook said...

BD: "I do not do the innuendo. I deal in facts as proven by evidence."

Where is the evidence that proves the facts regarding the CIA's waterboarding techniques or regarding how many persons were subjected to those techniques, and for how long?


You folks are playing prosecutor. I am playing my real life role as a defense attorney.

Burden of proof is on the prosecutor making the charges.
 

ok, mr. depalma, let's take this just as you say, and you are playing defense attorney, and want to argue the nuances of burden of proof. as a defense attorney then, i assume you are familiar with the term "spoliation of evidence". here in new york, and everywhere else where i have practiced, if a party is found to have destroyed relevant evidence, such as -- say -- videotapes, the jury is instructed that the evidence was destroyed due to the fact that it would have been adverse to the interests of the party that destroyed or discarded it. the burden then shifts to that party to show that the destroyed evidence was not, in fact, inculpatory.

ok counselor, now what do you say?
 

Burden of proof is on the prosecutor making the charges.

# posted by Bart DePalma : 10:23 PM


I couldn't agree more, and I would love to get the opportunity to waterboard some of that proof out of you.
 

Baghdad, how about playing your real life role as scumbag blogger, and post my comments.
 

Bart: "You folks are playing prosecutor. I am playing my real life role as a defense attorney."

Standard evasion, and, I suppose, my cue to put my blinders back on and again set to ignore you and responses to you.

You have no duty to defend the evil acts of torture perpetrated by our intelligence agencies at the behest of the current Administration. You do it Pro Malum (I can't bring myself to call it "for the good") because you in fact support the administration, and because to you there are two kinds of people with two very different sets of rights. Yours is the majority position throughout human history, for whatever comfort that affords you; despotism and tyranny have been quite popular, by and by.

It's been nice exchanging pleasantries, but I don't see much hope of worthwhile engagement. I renew my invitation to contact me by email if you wish to change my mind on that.

Peace, and blessings.
 

"Where exactly is the evidence, the signed and stamped and logged papers that document the tortures these prisoners underwent? Where are the audio or videotapes? Oh, that's right, the videotapes were destroyed!!"

Has anyone checked to see if there might remain transcripts of the videotapes? Not as powerful as video but still posssibly revealing, especially of whether useful information was gained.
 

ok counselor, now what do you say?

# posted by phg : 10:36 PM


He did what he always does when he gets kicked in the teeth. He ran away.
 

Dear Mr. DePalma.
I respectfully ask you to enlighten me
concerning the phrase "handful of civilians"
in reference to collateral damage.
Would this be ten or a thousand or
some number in between? FW
 

FW: Blogs are arguably the lousiest of all media for sustained conversation, because new posts tend to kill all interest in old ones, even among the best of interlocutors. So, don't take it personally if Bart doesn't get back to you on this one, as the thread is effectively dead. But rest assured he'll use the phrase again and you will have a chance to repeat the question.

Peace.
 

The weight of the water rolling off the wrap cuts off the air for however many seconds it takes ...

"Thank you, witness, that's enough. You may step down."

As I said, "It's just a little water....". The ood news is that Bradbury admitted that this had been approved at the highest levels. Cheney et al. will look cute in the dock at the Hague, though, like their comrade in arms Milosevic, Cheney's ticker might not be quite up to it....

Cheers,
 

After all, spending less than five minutes panicking terrorists to save lives just does not sound all that bad to most people.

The maladministration has made this 'argument' as well (see here). It flowed better in the original German, I think.

The flip side is that the treatment is so bad that it reportedly induces "confessions" in under two minutes. Why this is claimed as a virtue is beyond anyone of sapience.

As for the claim that this is "to save lives", the "TTB" is a pile'o'crap (I've pointed this out as well, not to mention pointing out that such (even if true) would be no 'justification', legally or ethically, for making it legal.

Cheers,
 

"Bart" DePalma:

You folks are playing prosecutor. I am playing my real life role as a defense attorney.

Not likely. Such type 'argumentation' would not be in his clients' interest. He prolly pleads most of 'em, seeing as they've been caught "dead to rights" (as they say) DUI.

Cheers,
 

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