Balkinization  

Thursday, June 05, 2008

If the Attorney General Insisted That the Sun Rises in the West, Would the New York Times Treat it as an Open Question?

Marty Lederman

Today's New York Times story about the arraignment of Khalid Shaikh Mohammed concludes with this sentence:
"C.I.A. officials have said that Mr. Mohammed was one of three detainees who were subjected to the simulated-drowning technique known as waterboarding during interrogation, which is described by some as torture."
I look forward to Times stories about the earth, "which is described by some as round and as revolving around the sun."

[UPDATE: My colleague David Luban is quite right to note, in addition -- and perhaps more importantly -- that there's nothing "simulated" about the drowning. It's all-too-real drowning. It simply is not permitted to last until death.]

Comments:

If it is any comfort, I attempted to get a resolution in 2008 out of the ASIL on this and apparently it was not clear enough for the powers that be that waterboarding is torture in the U.S. domestic and international law cases cited. The Tokyo trials cases cited in Evan Wallach's Drop by Drop apparently raised the question of whether the conviction was for the waterboarding when a tribunal found the Japanese soldier had done other things than waterboarding. It was an absurd decision - supposedly to be one on admissibility. So the NYTimes is in line with those who are following the "None dare call it torture" approach out of some misguided psychic need to deny the obvious.
Best,
Ben
 

Great example of the Overton Window. Republicans are continuously asserting that waterboarding and other techniques aren't torture, and they shift the window away from the "torture" side of things.

Now you've got a US Rep saying that waterboarding and everything else is just the same as a "fraternity hazing."
 

You also have to love how the reporter uses alleged statements made under torture as "confessions" by the accused. The NYT death watch continues.
 

Why won't Mukasey admit that waterboarding is torture, even though Navy Rear Adm. John Hutson (ret.) testified at Mukasey's confirmation hearing that aside from the rack and thumbscrew, waterboarding is perhaps the most iconic form of torture? The Bush administration has admitted waterboarding prisoners, torture is a war crime, so Mukasey would be calling his bosses war criminals. Also, evidence obtained by torture isn't admissible in the military commissions, but coerced statements are (if they were extracted before Dec. 30, 2005). So calling waterboarding torture would put another crimp in the kangaroo courts. The Times is parroting the Bush line the way it did on the way to war on Iraq and the way it's now doing on the way to war with Iran. So much for the "liberal media."
 

Marty:

You are the "some" to which the NYT refers.

Apparently even the Times has realized that this is not anything close to a universal position, certainly not on par with Earth revolving around the Sun.
 

Earth revolving around the sun is not the standard. It is universal, it is just that the past 7 years we have decided as a policy matter to deny that in our country. Like deciding as a policy matter that the world is flat.
Best,
Ben
 

ben:

This position may be nearly universal in your academic world. However, that world is tiny and unrepresentative of our nation.

DOJ was divided.

CIA was divided.

DoD was divided.

Our citizenry is divided and goes back and forth depending on the way the question is asked.

I have never seen a near universal policy position in our sprawling fractious country.

I am not under the delusion that any of my positions are embraced universally.

I would suggest that a belief that any of your positions is universal is a case of tunnel vision and destined for disappointment.

Best backatchya
 

Bart,

In the December 30, 2004 OLC memo, Legal Standards Applicable Under 18 U.S.C. 2340-2340A, is found the following language:

" Cases in which courts have found torture suggest the nature of the extreme conduct that falls within the statutory definition. See, e.g., Hilao v. Estate of Marcos, 103 F.3d 789, 790-91, 795 (9th Cir. 1996) (concluding that a course of conduct that included, among other things, severe beatings of plaintiff, repeated threats of death and electric shock, sleep deprivation, extended shackling to a cot (at times with a towel over his nose and mouth and water poured down his nostrils), seven months of confinement in a "suffocatingly hot" and cramped cell, and eight years of solitary or near-solitary confinement, constituted torture); (boldface mine)

Now a reasonable argument could be made that the 9th circuit saw a practice recognizable as waterboarding and called it torture. And the OLC cited it in their memorandum.

What more would be needed?
 

In a nation of 300 million people you can find a million people who will sign on to all manners of odd propositions. For example, global warming is a hoax perpetuated by scientists greedy for grant monies, or threatening imminent death by simulated drowning does not constitute torture.

But accepted standards worldwide are another thing altogether, and I doubt if our formidable interlocutor, Bart, or anyone else for that matter, can find a sizeable jurisdiction anywhere on the planet where waterboarding would not be considered torture, even if indulged in by the local authorities.
 

The problem with the Grey Lady and the media in general is that anytime anything gives rise to manufactured "controversy" as in the well-funded climate contrarian push, or the equally ostrich-like "We are not Torturers!" advocates and administration apologists, the media seems to resort to a truely infuriating and moronic "neutrality" and treats both sides as equally valid, or equally debateable.

One wonders how Edward R. Murrow would have commented on such a spinelessly insipid piece of text as Marty quotes here.

The "nation's paper of record" has sadly, sadly declined where the editors don't screen out such editorializations posing as reportage.
 

"Bart" DeDicta:

I am not under the delusion that any of my positions are embraced universally.

No. But you're not alone either. You'll certainly find the colonels in Myanmar, the president of Uzbekistan, and various others solidly in your corner....

In a different era, of course, you might have found the rulers of essentially all of Europe and Asia in your corner as well. But, unfortunately, you can't count on their support any more, as essentially any that survived were hanged or shot.

Cheers,
 

Arne-

You are so right. But the colonels, etc. would all probably cheerfully admit that "the water cure" is torture and then say, "SO?"

Only in America do people like Bart, who do have consciences after all and who do remember the times when we acted in a principled manner, have to alleviate the unbearable tension caused by the malign conjunction of patriotism and poltroonery by denying there is a conflict and that one half of the equation simply does not exist. Hence their refuge in a kind of legalistic deconstructionism and over-nice parsing of alleged uncertainties.
 

Marty,

You wrote: "It simply is not permitted to last until death."

It may be the case that in the first years of the program, they inadvertently lost some recipients of their "enhanced interrogation" methods to cardiac arrests.

It would not surprise.
 

Submitted for your consideration:

Given that:

A) Waterboarding is torture.

B) The US does not use torture for any reason.

C) The US uses "simulated drowneding" as an "enhanced" interrogation technique".

Therefor: "simulated drowning" is not Waterboarding.
 

According to the NPOV ("neutral point of view") rules of Wikipedia, waterboarding is not torture, because the NY Times did not say that waterboarding is torture and the NY Times is a reliable non-partisan source. Saying that waterboarding is torture represents "original research," which is not allowed on Wikipedia.

I am not exaggerating.
 

The title of your post misses the mark. Whether the sun rises in the west isn’t a legal question so what the Attorney General thinks would not be relevant. But if an “important” scientist were to announce that the earth does not in fact revolve around the sun, I think that the Times would treat it as an open question, at least until it was conclusively established that the scientist was mentally ill or something of the sort.

I think you would agree that in the current context, whether waterboarding is “torture” is primarily a legal question. In other words, it would be inappropriate for the Times to call waterboarding “torture,” without qualification, if there were any reasonable grounds for questioning whether it constitutes “torture” within the meaning of the torture statute and the torture convention.

You, of course, believe that there are no such reasonable grounds. But can you really think of a standard that would allow the Times to accept your judgment as conclusive and disregard the contrary views of the Attorney General, OLC, and many other “important” lawyers (as measured by academic credentials and/or jobs like teaching at top law schools or being partner at a big law firm)?

Even it were universally acknowledged that waterboarding is “torture” in ordinary language, this wouldn’t mean a whole lot. As both lawyers and non-lawyers understand, what words mean to ordinary people is often very different than what they mean to lawyers. That’s why the Constitution protects the right to abortion but doesn’t (yet) protect the right to bear arms.

Perhaps you would say that here the Times wasn’t using the word “torture” in a legal sense, but rather to describe what the experience of waterboarding is like. But if that were the case, I assume that the Times wouldn’t use the term “torture” at all, but would say something like “waterboarding causes panic and the sensation of drowning.” Even then, if there were any dispute about the matter, it would probably say “those who have experienced waterboarding report that it causes panic and the sensation of drowning.”
 

(1) Of course it's torture.

(2) Don't waste your time with Bart and MLS, who apparently think the KGB and the Gestapo hardly ever tortured anyone.
 

Don't waste your time with Bart and MLS, who apparently think the KGB and the Gestapo hardly ever tortured anyone.

What I find remarkable is the speed with which the political right has opted for nihilist philosophical arguments in the face of challenge. There are no moral standards, epistemology = deconstructionism, yada yada yada.
 

Anderson said,
>>>>>
(1) Of course it's torture.

(2) Don't waste your time with Bart and MLS, who apparently think the KGB and the Gestapo hardly ever tortured anyone. <<<<<

Yes, Bart and MLS would make good Wickedpedia administrators. What stupid sacks of @&*^%$#.
 

What Anderson said: torture is when you torment someone intentionally, either to force them to act against their will or as punishiment. How you torment them is beside the point, and 1 + 1 = 2 is not a political question.

All Bart is really saying is that it's OK to torture some people if he thinks it's advantageous to him. His reasoning is precisely the same as the Nazi arguments for exterminating Jews etc.
 

michael:

Hilao v. Estate of Marcos, 103 F.3d 789, 790-91, 795 (9th Cir. 1996) (concluding that a course of conduct that included, among other things, severe beatings of plaintiff, repeated threats of death and electric shock, sleep deprivation, extended shackling to a cot (at times with a towel over his nose and mouth and water poured down his nostrils), seven months of confinement in a "suffocatingly hot" and cramped cell, and eight years of solitary or near-solitary confinement, constituted torture)

Hilao is easy to distinguish.

1) The definition of torture was not challenged and was not at issue in this appeal. If it was challenged, the due process standard would have been lower because this was a civil rather than a criminal case.

2) The jury was asked whether the totality of the aforementioned acts constituted torture. This presents two problems for using this as precedent to apply to CIA waterboarding alone. First, the jury could have and probably did find that severe beatings and electroshock were torture and themselves merited a verdict. Second, even if the jury did not find any one act to be torture, they could have found that the totality of the acts were torture. To be a valid precedent, the jury would have needed to enter a verdict on the acts involving water alone.

3) Even if the jury had found that the acts involving water in this case were torture, they are not comparable in quality of quantity to the CIA waterboarding. In Hilao, the defendant was accused of forcing water into the mouth and nostrils of the plaintiff through a rag for SIX HOURS on end. In stark contrast, the CIA waterboarding involved placing cellophane over the mouth and nostrils of three terrorists and running water over that cellophane (not into the mouth and nostrils) for between 20 to 90 seconds.

The fact is that there is no applicable precedent.
 

In stark contrast, the CIA waterboarding involved placing cellophane over the mouth and nostrils of three terrorists and running water over that cellophane (not into the mouth and nostrils) for between 20 to 90 seconds.

What fucking difference does that make? It is a mock execution. That is torture, no matter how long it takes.
 

No applicaple precedent for what exactly Bart?

Obeying the law?

Punishing people who violate it?

What?

The fact that you ignore a precedent or claim it's inapplicaple on the basis of some fraudulent argument or lie is simply more evidence of your own dishonesty and depravity.
 

larry fafarman said...

According to the NPOV ("neutral point of view") rules of Wikipedia, waterboarding is not torture, because the NY Times did not say that waterboarding is torture and the NY Times is a reliable non-partisan source. Saying that waterboarding is torture represents "original research," which is not allowed on Wikipedia. I am not exaggerating.

Actually, what makes this argument even more effective is that the NYT is in fact a high partisan Dem paper which loathes Mr. Bush. Thus, the fact the NYT failed to follow the lead of many Dems including the ones here to assume that the CIA program was "torture" is a very nice contrast which I used in my first comment.
 

Folks: Please, for the millionth time -- if you think Bart's arguments are as superficial and preposterous as you (and I) do, please simply *ignore* them, so that the comments section can be devoted to serious discussion and might be worth reading for an audience larger than eleven.

Thanks
 

Anderson/Mark/Larry:

I am treating this as an application of law. You are making an assumption based on personal preference. BTW, name calling is not evidence to support your personal preference nor a rebuttal to my legal points.

charles gittings said...

What Anderson said: torture is when you torment someone intentionally, either to force them to act against their will or as punishiment. How you torment them is beside the point

This is not a definition used under any law and is in fact utterly unworkable. The purpose of all interrogation is to overcome the resistance of the person against disclosing information which will aid their enemies and/or act against their own self interest.
 

marty said...

Folks: Please, for the millionth time -- if you think Bart's arguments are as superficial and preposterous as you (and I) do, please simply *ignore* them, so that the comments section can be devoted to serious discussion and might be worth reading for an audience larger than eleven.

Sir, if my arguments are superficial and without legal merit, you are free to demonstrate how they are in error. You can start with my analysis of the Hilao v. Estate of Marcos case, which in fact was the only legal discussion on this thread.

You claim that your threads are meant to foster "serious discussion" of the issues.

How does your blithe assumption of absolute facts without evidence such as the lead post in this thread chiding the partisan NYT for taking a more circumspect and sober position than your own foster serious discussion of the issues?

How do your posts urging that the folks here stop conversing with those who disagree with you foster serious discussion of the issues?

How do your deletion of comment threads (as I expect will be the result of this critical post) foster the serious discussion of the issues?

Sir, I would suggest that your actions appear not to be intended to foster a serious discussion of the issues, but rather to create a proverbial Greek chorus to echo your own opinions to reach a larger audience of like minded readers.

If that is your intent, then be honest and admit it.

If that is not your intent, then I would suggest that you seriously reconsider your approach to debate on your threads.
 

You claim that your threads are meant to foster "serious discussion" of the issues.

You claim the same about your blog, but that doesn't stop you from blocking serious posts. In short, stop your fucking whining, you hypocrite.
 

Marty, if you don't think Bart is a serious participant, you should ban him. Otherwise you are just providing him a platform for fascist propaganda, and people are going to continue to respond to him.
 

Sorry Marty, but there is a serious point I'm trying to make...

Bart, why exactly is that definition any less workable than a definition for murder or extortion?

You can talk to somebody all you want, you can even threaten to lawfully prosecute them for a crime, or sue them for civil damages. The distinction between that and harrassment, extortion, blackmail, or assault might have some gray around the edges, but it is a distinction, and drawing such distinctions is a fundamental task in any sort of law.

Equally, you can properly apply a lawful punishment when someone has been duly convicted of a crime, but you can't simply convict and punish them on your own say-so and call it lawful.

Would you claim that given certain evidence of a crime having been committed that it would be OK to simply torture every faintly possible suspect until someone confessed?

If not, how do you determine who is eligible for torture and who isn't?
 

Bart,
I understand the type of defense you are running on waterboarding to distinguish prior decisions. That is what a defense lawyer does and I fully expect that. Yours is basically a "what I did is not what the precedents facts were like so it is not torture" approach. What I am saying is that as a matter of international law and the US domestic law waterboarding is torture and what the US did with cellophane or whatever and called waterboarding is torture under those US domestic and international standards. And that a prosecution should be brought for that and that high-level civilians will be found guilty of the crimes related to this torture. If they get off, I do not think it will be for the type of fact distinction you are making but rather because some other defense in law will be persuasive (the President made me do it kind of route) to the jury. All that does not change the fact that this is torture.
Best,
Ben
 

Bartbuster said,
>>>>>Marty, if you don't think Bart is a serious participant, you should ban him. Otherwise you are just providing him a platform for fascist propaganda, and people are going to continue to respond to him. <<<<<

No, I don't think that Bart DePalma has said anything to justify censorship.

Despite my own general no-censorship policy on my own blog, I finally had to censor some comments, e.g., comments that had clearcut lies about objective facts, such as saying that a news report said that Judge Jones said that his Kitzmiller v. Dover decision would follow the law when the news report actually said that he said that his decision would not be influenced by the results of the school board elections.
 

(to comply with our kind host's request, this comment is not in response to any previous post, but rather to the thread topic.)

I find it bewildering, naif that I am, that the NYT thinks torture rises to the level of controversy in this country.

I sometimes suspect a diabolical cleverness & intent in the trash-compactment of the broad spectrum of cruel and inhumane treatments into the term "torture" and the association of "torture" solely with waterboarding....and then the final coup de grace, by saying waterboarding is perhaps not torture.

What we see is a denaturing of the full abomination by steering the conversation to a sanitized, "technique done under rigid, safe, controlled protocols".

Then we make the whole problem go away by saying that "torture" is too vaguely defined to even apply to waterboarding.

Now we are left with no misbehavior whatsoever.

So they were like a magician; they put a coin in a handkerchief of secrecy and executive privilege, passed a few OLC memos over it, opened it up and voila no coin! Thunderous applause from all the neocons.

Cruel and inhumane treatment/torture was never solely about the infliction of physical pain, never solely about the duration of "treatment", and so forth, EXCEPT in the memoranda of the lawyers commissioned by their superiors to find legal cover for abominable misbehavior.
 

I would like to ask Mr. DePalma, who seems to think that it makes
some difference to his argument that only three people were tortured
by this method, which number of people would make it legally or
morally wrong. If three is an acceptable number, is there any number
at which this behavior would become unacceptable or illegal or immoral?
FW
 

The definition of torture was not challenged and was not at issue in this appeal. If it was challenged, the due process standard would have been lower because this was a civil rather than a criminal case.

Bart, I know a little something about Hilao (or as we used to call it, the "Marcos case").

Yes, one of the issues was whether the acts complained of violated customary international law prohibitions against torture. And yes, the courts ruled in the plaintiff's favor on that issue.
 

No, I don't think that Bart DePalma has said anything to justify censorship.

I think that is completely up to the person running the blog, and what kind of blog they want it to be. If you want serious discussion, you can't have propagandists like Bart involved. If you choose to give the Barts of the world a platform, you're not really in a position to complain about the response.
 

charles gittings said...

Sorry Marty, but there is a serious point I'm trying to make...

Bart, why exactly is that definition any less workable than a definition for murder or extortion?


Your definition of torture was "when you torment someone intentionally, either to force them to act against their will or as punishment. How you torment them is beside the point..."

How you define "torment?" Your aside indicates that you have no limit to the scope of that term. Thus, I assumed in my post above that your definition would include all types of interrogation because all interrogation in meant to force the subject to act (disclose information) against their will.

If you have a more limited definition of "torment," then how do you define the term? It is inherently as vague as the term "torture."
 

Yes. They would. The MSM takes an idea seriously if and only if "serious people" take it seriously.
 

Ben:

We both agree that torture should be banned. Your line for torture is different from mine. There is nothing written in stone establishing either one of our opinions as a universal truth, which was my point in this thread.

However, I contend that establishing the brightest line we can manage defining acts which are banned as torture is an ethical imperative. We are demanding that our war fighters obtain actionable intelligence to prevent the next 9/11 or worse without giving them reasonable guidance. In effect, we are saying to them, do what you need to do to stop the next massacre and then we will decide after the fact whether you should be imprisoned for crossing a line that we will define later.

I suggest that society needs to debate where it wants to establish this bright line and then do it. One can do this positively by listing banned acts or better yet negatively by listing the permitted techniques such as by adopting the Army Interrogation Manual.

Instead, what is happening is that the politicians are intentionally erasing the line in order to simultaneously claim that they oppose torture and to keep their options open when they capture the next KSM.

I thought that Yoo made a reasonable effort at providing a line for a statute which I believe the politicians kept and continue to keep vague. Goldsmith's rejection of that line and return to blurry non standards was a step back in the wrong direction.

Maybe I am strange, but it seems to be a perfectly reasonable request that our war fighters be notified of what is and is not permitted before they begin work.

I have concluded that the reason I am meeting such impassioned resistance to this reasonable request is that such an amendment would concede that our current regime does not provide notice of what is and is not permitted and more to the point concede that the Bush Administration is not the second coming of Nazi Germany guilty of war crimes.

I would suggest that the desire to get at the Bush Administration does our war fighters a severe disservice because it is they who are being put in danger of criminal liability and ruin by this ideological and yes partisan cross fire.
 

dilan said...

BD: The definition of torture was not challenged and was not at issue in this appeal. If it was challenged, the due process standard would have been lower because this was a civil rather than a criminal case.

Bart, I know a little something about Hilao (or as we used to call it, the "Marcos case"). Yes, one of the issues was whether the acts complained of violated customary international law prohibitions against torture. And yes, the courts ruled in the plaintiff's favor on that issue.


My point was that the definition of torture was not challenged for being void for vagueness as I have contended. It appears in Paragraph 45 of the opinion, that only the definition of "cruel, inhuman, or degrading treatment" was challenged and the Circuit avoided the issue by observing that the defendant could have been found liable under other grounds.
 

As a comparative newcomer on this blog, I have tried as best I can, to refute the arguments Bart makes ad nauseam on thread after thread.

He is, of course, a self confessed Neoconservative infected with the originalist heresy; a fascist, a bigot, a person of no forensic talent, and (in the immortal words of Peter Cook) “a liar, a humbug, a hypocrite, a vagabond, a loathsome spotted reptile and a self-confessed chicken strangler.

Marty suggests that his posts be ignored. I disagree. I am gratified that others do too.
 

Bart,

I take your point on providing guidance to war fighters. One of those precise war fighters who got the e-mail on the ground in Iraq that said "Geneva Conventions will not apply" immediately said to himself "That is going to be a problem." Your error (in my opinion) is thinking the Yoo analysis and definition was an improvement on guidance to the war fighters.

It is all those people who were insisting on the Army Field Manual applying (Manual which has been around since the 1950's and is based on at least 60 years of experience) and were pulled out of the loop (JAG's and others) that were trying to keep the troops acting consistent with the UCMJ rules, regulations, manuals and training.

As to the intelligence types not in uniform and therefore not war fighters of the uniformed kind, the point there is also that the Yoo analysis was strenuously objected to by the FBI types we have heard about in the IG analysis.

So then you come down to the "torture team" pushing novel advice against a bunch of people who based their thinking on the last 60 years of experience and do things consistent with the training and values.

This Yoo analysis stuff was so dicey that Tenet spent his time getting micromanage approval at the National Security Principals level. That's shows how poor the Yoo analysis was also.

So maybe this is the "where you stand depends on where you sit" kind of analysis - but the people that I have met all over this and read make it clear that the Yoo route was just good old "panic and improvisation" and CYA. That took us away from the lessons learned without gaining us anything.

This leaves to the side the need for innovation in facing new threats - I understand the need to find new tactics. I am just saying that the Yoo analysis was illegitimate on the substance and in the process by which it was created.

By the way, the specific/vague argument and list argument on the definition of what is permissible in the law was rejected in the Geneva Conventions writing (as you know) because people will try to work around the list ("Oh, it is not on the list so it is OK." or "They don't say we can't do them together in this fashion as opposed to that fashion.")

No matter what treaty or what law, the specificity that you seek will not be there.

I teach Contracts and whether an advertisement is an "offer" or just an "invitation to make an offer" depends on the facts.

There still is a general rule that says generally an advertisement is not an offer under the objective theory of contracts.

I take the view of staying with the general rule vision rather than going with Yoo type analysis that is not even about recongized exceptions but about creating speculative analyses that can only be made to hold water with a power cramdown.

That power cramdown was exactly what was done. That was not guidance to war fighters, that was just abuse of power and acquiescence by war fighters "going along to get along."

Peace,
Ben
 

Neocon Bart wrote:-

We both agree that torture should be banned. Your line for torture is different from mine. There is nothing written in stone establishing either one of our opinions as a universal truth, which was my point in this thread.

However, I contend that establishing the brightest line we can manage defining acts which are banned as torture is an ethical imperative. We are demanding that our war fighters obtain actionable intelligence to prevent the next 9/11 or worse without giving them reasonable guidance. In effect, we are saying to them, do what you need to do to stop the next massacre and then we will decide after the fact whether you should be imprisoned for crossing a line that we will define later.


As usual, the assertions Bart makes are wildly off the mark.

The USA and many other counties have signed up to the Torture Convention and a whole host of other conventions. These have been ratified by the Congress. This means that they are, in the words of your Constitution: “the supreme law of the land” due execution of which your President is charged to ensure.

Therefore the “bright line” as Bart puts it has been established. It is breathtakingly simple. No form of physical or metal abuse is permissible.

When suspects are arrested on suspicion of terrorist activity in the UK, they are taken to specialised police detention suites. The whole detention suite is under continuous video surveillance. All conversations are recorded. All interviews of suspects are taped and a sealed copy provided to the suspect’s lawyer upon conclusion of each interview. The length of each interview session is prescribed, there are prescribed periods for rest and refreshment, the environmental conditions and comforts to be provided are prescribed. Everything possible is done to make absolutely sure that nothing is said or done which will make any statement inadmissible at trial.

That is the standard. The siren calls of those who say "just the teeniest bit of abuse may save lives" must be resisted.

If Bart wishes the USA to descend to the level of the Gestapo, the Argentinean and Chilean Juntas, Saddam Hussein’s Mukhabbarat, so be it. Then we know what to call him.

Sadly, there is increasing evidence that the USA has indeed resorted to torture and to the inhumane and degrading treatment of detainees. There is further evidence that this is not the work of “a few bad apples”, but official policy sanctioned at the highest level.

Your President is about to embark on what I think will be his final visit to Europe. It is certainly the last time he is likely to visit before the election and, of course, after he has left office, he will no longer have immunity for “ius cogens” crimes.

If his administration's acts are not brought to book in a US domestic forum, it likely that efforts to do so will take place elsewhere. On the whole, I think the USA might be better off doing its own dirty washing.

No doubt we will hear more shortly from this blog's very own "loathsome spotted reptile."
 

Benjamin Davis said: "By the way, the specific/vague argument and list argument on the definition of what is permissible in the law was rejected in the Geneva Conventions writing (as you know) because people will try to work around the list ("Oh, it is not on the list so it is OK." or "They don't say we can't do them together in this fashion as opposed to that fashion.")"

Well said, Ben. I always appreciate yours and Mourads contributions on OJ and read all your posts.

The argument that the various torture bans fail for reasons of vagueness, fails itself for reasons of a species of willful obtuseness.

Take "cruel and unusual punishment" in the Eighth Amendment. Did the Framers provide us a list of all possible punishments that would fill that bill? No? Didn't they worry that later generations might thereby have too free a rein in interpreting it?

Well no.

Hypothetical time: Suppose our people at Bagram had taken detainees and duct-taped them to chairs, placed them on railroad tracks in the path of onrushing trains, questioned them, and then, at the last possible moment, jerked chair and detainee to safety. Perhaps they would do this repeatedly.

Well would this be cruel and unusual treatment? Or torture?Its certainly not explicitly forbidden.

Now if you answer that although that specific treatment isn't listed but there is a legal ban on putting a detainee in fear imminent death, would not waterboarding qualify under that more general consideration?

One can't have it both ways.
 

Bart,

By "torment", I mean "inflict abuse" -- and it's a little difficult to suppose you don't know what the word means. Now do you suppose you cease with the vacduous quibbling over definitions and answer my questions?
 

Bart's point appears to be that where coercion escalates into torture and the line between actual torture and what is "merely" "cruel, inhumane and degrading" us almost impossible to draw. That is true enough.

But then again, the Convention Against Torture bans not only torture but "cruel, inhumane and degrading treatment" even if it stops short of outright torture. And the common Geneva Convention protections forbid not only torture but "violence to life and person," "cruel treatment" and anything "humiliating and degrading."

All of which means that the distinction Bart gives such emphasis is not the distinction between lawful and unlawful, but the distinction between a greater crime and a lesser included offense.
 

Let's look at the Torture Victim Protection Act and how it defines things:

“(b) Torture.—For the purposes of this Act—
“(1) the term ‘torture’ means any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and
“(2) mental pain or suffering refers to prolonged mental harm caused by or resulting from—
“(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
“(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
“(C) the threat of imminent death; or
“(D)the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.”
[boldfaces mine]
----------
Isn't the effectiveness of waterboarding precisely the fact that the body reacts instinctively to the event as drowning, overrules the mind and induces a state of mindless panic of which if you queried the victim afterwards could be epitomized by the statement, "I thought I was going to die"?
 

So if my reading of the TVPA is accurate and applicable, then couldn't that sterling scribe at the NYT have rephrased that sentence:

"...which is characterized by US statute as torture."
 

benjamin davis said...

Bart,

Your error (in my opinion) is thinking the Yoo analysis and definition was an improvement on guidance to the war fighters.

Yoo provided some guidance where there was none before. I think we both probably thought the line Yoo set went way too far, but in Yoo's defense it was the only definition Congress ever provided for the term "severe pain."

It is all those people who were insisting on the Army Field Manual applying (Manual which has been around since the 1950's and is based on at least 60 years of experience) and were pulled out of the loop (JAG's and others) that were trying to keep the troops acting consistent with the UCMJ rules, regulations, manuals and training.

My preference would be to have Congress approve the Army Interrogation manual and a classified set of coercive techniques for extreme situations. I personally would include waterboarding with the classified set of techniques, but would understand if Congress would disagree. However, I would exchange waterbording for specific guidance for the interrogators.

As to the intelligence types not in uniform and therefore not war fighters of the uniformed kind, the point there is also that the Yoo analysis was strenuously objected to by the FBI types we have heard about in the IG analysis.

FBI's less than stellar success rate in getting timely actionable intelligence is not exactly a great argument for adopting their good cop methods. They failed utterly in getting anything from Zubaydah during weeks of playing good cop. After CIA broke Zubaydah in about 30 seconds and found KSM, FBI compounded their failure with a really pathetic CYA campaign of denigrating Zubaydah's value as a source of information. In fact, the capture of KSM largely crippled the al Qaeda network.
 

After CIA broke Zubaydah in about 30 seconds and found KSM, FBI compounded their failure with a really pathetic CYA campaign of denigrating Zubaydah's value as a source of information. In fact, the capture of KSM largely crippled the al Qaeda network.

# posted by Bart DePalma : 10:02 PM


Too bad there isn't a shred of evidence to back up these claims.
 

mourad said...

As usual, the assertions Bart makes are wildly off the mark.

The USA and many other counties have signed up to the Torture Convention and a whole host of other conventions. These have been ratified by the Congress. This means that they are, in the words of your Constitution: “the supreme law of the land” due execution of which your President is charged to ensure.

Therefore the “bright line” as Bart puts it has been established. It is breathtakingly simple. No form of physical or metal abuse is permissible.


Have you actually read the CAT definition to which the US agreed?

The definition of torture is the intentional infliction of severe physical or mental pain. The use of the term severe pain implies that all levels of pain below severe are permitted.

Therein lies the problem.

If all infliction of pain was barred, then I would agree that this formed a reasonably bright line.

However, the permission of some level of pain but no more causes the problem because it is medically impossible to objectively measure pain.
 

charles gittings said...

Bart, By "torment", I mean "inflict abuse" -- and it's a little difficult to suppose you don't know what the word means.

Actually, I do not know an objective definition for "abuse" and neither do you.

If I told an al Qaeda terrorist that Muhammad was gay, would that be abuse and thus torment and thus torture in your book? Because al Qaeda thinks that homosexuality is an abomination and that gays should be killed, he is likely to think that an interrogator calling the Prophet gay to be abuse. Do you think that calling someone gay is abusive?
 

We are demanding that our war fighters obtain actionable intelligence to prevent the next 9/11 or worse without giving them reasonable guidance.

Who is demanding this? And is anyone demanding that they torture people? Certainly not me.

The fallacy of bifurcation, such a favourite of RW foamer logic, rears its ugly head again. <*sigh*> I'm beginning to think that RW foamers have a limited imagination (and even more limited moral stature).

Cheers,
 

Yoo provided some guidance where there was none before. I think we both probably thought the line Yoo set went way too far, but in Yoo's defense it was the only definition Congress ever provided for the term "severe pain."

And I appreciate that there are some hat welcome the assistance of the hockey federation's clear definition of "red line" in helpng us to determin whether "red-lining" in housing sales is legal.

Cheers,
 

Bart,

I asked you three questions, and I'm still waiting for an answer.

As for your latest little puff of squid ink --

Is it abusive to hang a sign around someone's neck that says "Juden"?

Is it abusive to tell someone "Your mother's a whore?"

Of course it's abusive -- on it's face. What other intent could it have?

As for your absurd claim about objectivity...

Pray tell: in what significant way is the definition of "abuse" less objective than the definition of "assault", "stalking", "murder", or "robbery"?

When you're done with that, please explain why it would be improper under your view of things to do exactly the same things you want to do to people you accuse of being "terrorists" to a three-year-old girl.

Show me an objective difference there -- you can't do it: if George Bush says she's an "unlawful enemy combatant" and orders the CIA to torture her exactly the same way they have tortured terrorism suspects the last six years, according to you that's just fine simply because he says so.

And what distinction could there be?

Only this, that a three year old girl simply isn't mentally capable of acting as a terrorist... But as for anyone else, it must be your claim that it's OK to torture someone whenever there is thought to be an objective possibility that someone might be a terrorist -- something which is objectively true in some degree of any competent adult, since any of us might be a terrorist. And any of us might equally be thought to be one by someone else, or merely falsely accused.

You got some explaining to do Bart.
 

It was suggested somewhere above on this interesting thread, that the military forces were of two minds about waterboarding's status as torture and illegal. Maybe less so than intimated.....

from a letter to Chairman Leahy, dtd 2 Nov 2007:

"Dear Chairman Leahy,

In the course of the Senate Judiciary Committee’s consideration of President Bush’s nominee for the post of Attorney General, there has been much discussion, but little clarity, about the legality of “waterboarding” under United States and international law. We write because this issue above all demands clarity: Waterboarding is inhumane, it is torture, and it is illegal.

In 2006 the Senate Judiciary Committee held hearings on the authority to prosecute terrorists under the war crimes provisions of Title 18 of the U.S. Code. In connection with those hearings the sitting Judge Advocates General of the military services were asked to submit written responses to a series of questions regarding “the use of a wet towel and dripping water to induce the misperception of drowning (i.e., waterboarding) . . .” Major General Scott Black, U.S. Army Judge Advocate General, Major General Jack Rives, U.S. Air Force Judge Advocate General, Rear Admiral Bruce MacDonald, U.S. Navy Judge Advocate General, and Brigadier Gen. Kevin Sandkuhler, Staff Judge Advocate to the Commandant of the U.S. Marine Corps, unanimously and unambiguously agreed that such conduct is inhumane and illegal and would constitute a violation of international law, to include Common Article 3 of the 1949 Geneva Conventions.

We agree with our active duty colleagues. This is a critically important issue - but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation. All U.S. Government agencies and personnel, and not just America’s military forces, must abide by both the spirit and letter of the controlling provisions of international law. Cruelty and torture - no less than wanton killing - is neither justified nor legal in any circumstance. It is essential to be clear, specific and unambiguous about this fact - as in fact we have been throughout America’s history, at least until the last few years. Abu Ghraib and other notorious examples of detainee abuse have been the product, at least in part, of a self-serving and destructive disregard for the well- established legal principles applicable to this issue. This must end.

The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed. In this instance, the relevant rule - the law - has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise - or even to give credence to such a suggestion - represents both an affront to the law and to the core values of our nation.

We respectfully urge you to consider these principles in connection with the nomination of Judge Mukasey.

Sincerely,

Rear Admiral Donald J. Guter, United States Navy (Ret.) Judge Advocate General of the Navy, 2000-02

Rear Admiral John D. Hutson, United States Navy (Ret.) Judge Advocate General of the Navy, 1997-2000

Major General John L. Fugh, United States Army (Ret.) Judge Advocate General of the Army, 1991-93

Brigadier General David M. Brahms, United States Marine Corps (Ret.) Staff Judge Advocate to the Commandant, 1985-88"


-----

But of course these untutored servicemen know nothing of the difficulty of "objective" definitions of torture and abusive behavior so I suppose we can disregard their ill-informed opinion.
 

Neocon Bart writes:-

“My preference would be to have Congress approve the Army Interrogation manual and a classified set of coercive techniques for extreme situations. I personally would include waterboarding with the classified set of techniques, but would understand if Congress would disagree. However, I would exchange waterboarding for specific guidance for the interrogators."

What Bart does not explain and, I suggest,cannot explain is:-

(i)how the establishment of his “classified set of coercive techniques” would be consistent with the obligations of the United States under the Torture Convention, which is duly signed and ratified and therefore “the supreme law of the land”;

(ii)how it would lie in the mouths of representatives of the United States to complain if the same techniques were used by other nations against US Servicemen or civilians abroad;

(iii)how he would persuade every other country which takes a “ius cogens” approach to torture from prosecuting any US torturer who comes within their jurisdictions and I point out that the list of such jurisdictions includes every NATO ally of the USA; or

(iv)how it would then be possible for such allies of the USA to continue to participate in multinational forces or with other forms of co-operation, including extradition, intelligence sharing, the tolerated presence of CIA agents on European territory and so forth.

Of course, it would be theoretically possible to denounce the Torture Convention and the Geneva Conventions and then amend its domestic law, but that would not resolve (ii), (iii) and (iv) above.

I suspect that if the USA does not itself act to put right what the Bush Administration has, it seems, wrongly permitted, and, a fortiori , were a future administration to proceed along the same “primrose path”, immense difficulties will be created in many areas in which the USA and the European democracies presently co-operate.
 

Bart, the Neocon apologist for torture, wrote:

“Have you actually read the CAT definition to which the US agreed?
The definition of torture is the intentional infliction of severe physical or mental pain. The use of the term severe pain implies that all levels of pain below severe are permitted.
Therein lies the problem.
If all infliction of pain was barred, then I would agree that this formed a reasonably bright line.
However, the permission of some level of pain but no more causes the problem because it is medically impossible to objectively measure pain.”


Funnily enough, my dear Bart, I have read the Convention, the terms of the US Ratification and the US Statute.

I am also passingly familiar, as I suspect you are not, with the Vienna Convention on the Law of Treaties, which actually did no more than codify accepted international law.

I suggest you rush off and read it provisions, particularly as regards the effect of reservations to a treaty expressed in an instrument of ratification.

I have long suspected that somewhere within the apparatus of the Bush Administration there must be some equivalent to the Dickensian “Circumlocution Office”. I suspect that it is located somewhere in the Office of Legal Counsel. There will be an inter-departmental committee with representation from State and there will be PR people involved and one of its tasks will be the devising of innocuous –sounding euphemisms for unacceptable conduct:

“kidnapping a suspect on the territory of a foreign state and spiriting him away for torture” = “extraordinary rendition”

“obtaining a confession by torture, physical or mental abuse, inhuman or degrading treatment” = “coercive interrogation”


Let us therefore be clear. The treaty obligations which your country has undertaken ban all, repeat all, forms of coercion, including for example: the hooding of prisoners, compelling them to assume stress positions, inappropriate sexual contact, dietary restriction, not allowing proper sleep periods, manipulation of the prisoner environment (light, temperature, sound etc), abusive speech, offending their religious principles, express or implied threats – in short any conduct which would cause a Court to consider that a confession was not freely and voluntarily given and exclude it from a trial.

Some forms of ill-treatment constitute torture, others a lesser offence, and I am not fully aware of the US practice, but here the Crown Prosecution Service would probably prefer an indictment with alternative counts and leave it to a properly directed jury to decide on the evidence which side of the line particular conduct fell.

The real problem I have with you is that you have made it perfectly clear that the point from which you come that you personally would like it to be lawful for interrogators to conduct what you term ”coercive interrogations”.

Tell me, Bart, have you yet got around to thinking about the heraldry for your seal of office as Secretary for Torture in your Neoconservative New World Order? Crossed electrodes on a background of vomit and blood perhaps ?
 

However, the permission of some level of pain but no more causes the problem because it is medically impossible to objectively measure pain.

Bart, I shouldn't say this, but you're an idiot in the truest sense of the word which is to say: useless.

You're useless as a citizen except to those who would prefer that the United States emulate the model of Nazi Germany.

Your arguments in favor of abusing prisoners apply equally in opposition to the language of our Constitution. The ban on "cruel and unusual punishment" mentioned above is a perfect example. By your standards such language is "void for vagueness." And yet, most Americans aren't particularly alarmed by the vagueness of the words "cruel and unusual." Do you know why most Americans are not bothered by the ambiguity in such language? Allow me to tell you- Most Americans intuitively agree with the sentiment behind the words.

Ambiguity only becomes a problem if you don't agree with the spirit of the law which is clearly the case with you. You don't agree with the general proposition that prisoners should not be abused.

Allow me also to remind you that George Washington started our nation off on a lofty course by his stubborn insistence that POW's be treated humanely. And idiots like yourself defecate freely on the values this nation was founded upon.
 

Charles:

Provide your definition of abusive and then I will gladly show you the differences between that definition and those used for other felonies in CO.

As to your contention that name calling somehow equals torture, I would remind you of your kindergarten lessons:

Sticks and stones can break my bones, but words can never hurt me.

BTW, it took all of my self restraint to keep from leading off snarking that you had just violated your own understanding of the torture statute by calling me a Nazi. Turn yourself in to the FBI for prosecution.
 

mourad said...

BD: “My preference would be to have Congress approve the Army Interrogation manual and a classified set of coercive techniques for extreme situations. I personally would include waterboarding with the classified set of techniques, but would understand if Congress would disagree. However, I would exchange waterboarding for specific guidance for the interrogators."

What Bart does not explain and, I suggest,cannot explain is:-

(i)how the establishment of his “classified set of coercive techniques” would be consistent with the obligations of the United States under the Torture Convention, which is duly signed and ratified and therefore “the supreme law of the land”;


1) Because the CAT does not have an objective definition of torture, Congress provision of an objective definition is as good as any other signatory's.

2) To the extent that Congress' definition could be thought to be different than the CAT, the Constitution grants Congress the power to withdraw from treaties at will.

(ii)how it would lie in the mouths of representatives of the United States to complain if the same techniques were used by other nations against US Servicemen or civilians abroad;

If our soldiers start fighting disguised as civilians for the purpose of using civilians as human shields and to mass murder civilians, the enemy is welcome to employ the same exact techniques against our unlawful combatants. This would mark a significant improvement in the treatment of our soldiers, who are generally tortured to death,

(iii) how he would persuade every other country which takes a “ius cogens” approach to torture from prosecuting any US torturer who comes within their jurisdictions and I point out that the list of such jurisdictions includes every NATO ally of the USA;

Military and economic hard power usually discourages such acts of war against our citizenry.

(iv) how it would then be possible for such allies of the USA to continue to participate in multinational forces or with other forms of co-operation, including extradition, intelligence sharing, the tolerated presence of CIA agents on European territory and so forth.

Get real. Other countries are usually begging the US to add its troops to their multinational forces because we actually fight and it will relieve them of the burden of fighting themselves. (See Bosnia). Moreover, the EU countries all participated in rendering terrorists out of their countries, believing no doubt that our CIA was providing them a service.
 

In the matter of interrogators needing clear guidance.

Military interrogators always have had such. They would not have needed to be told that waterboarding, electric shocks, stress positions, etc. were torture.

They would have had to be ordered by a superior officer to use such techniques. Thus there is no real issue in legal jeopardy for "just doing their [ill-defined] jobs"

Personnel in the military police are well trained in what constitutes legal and illegal force. (disclosure: I worked for USAR JAG back in olden times).

There are limits to force applied except in the cases of a prisoner's physical resistance to commands/instructions.

Taking a prisoner, otherwise docile, and applying waterboarding, electric shocks, etc. is simply unthinkable to the average enlisted personnel and more so to the warrants and commissioned officers above them. The behaviors at Abu Ghraib for instance would never occur in a stateside brig or detention facility.

So, the point that interrogators lacked guidance and need same is really unfounded.

Mattski is entirely correct. No laundry lists have ever been used as none were needed. The applicable concept is physical force applied to the person and we all know very well the customary limits in detention. Military personnel are trained not even to lightly strike or shove prisoners except in exigent circumstances.

This covers military personnel subject to the Uniform Code.

Unfortunately, not all interrogations were done by US military. Titan and other private entities were subcontracted by DOD and the State Department and Titan employed third country nationals.

So far the ATCA has not been deployed against these entities and their employers and it will be interesting to see what civil litigation arises in the near future to address the contractor abuse.
 

Bart,

You do own a dictionary, correct?

I don't mean the word in any special sense, and I'd say so if I did. Here's Webster's definition:

abuse:

1: a corrupt practice or custom

2: improper or excessive use or treatment : misuse [drug abuse] [abuse of tranquilizers]

3 obsolete : a deceitful act : deception

4: language that condemns or vilifies usually unjustly, intemperately, and angrily

5: physical maltreatment

In this context, several of those are in play, but I think it's pretty clear (especially given the fact of our past discussions) that I mean simply any and all forms of intentional verbal or physical maltreatment -- and if it wasn't, it is now. The IMT Charter uses very plain language here: the murder or ill-treatment of prisoners is a crime, PERIOD. Geneva and Hague are equally clear.

As for me calling you a Nazi, or more accurately, a neo-fascist, there's a few differences...

1) You aren't a helpless prisoner.

2) I'm not subjecting you to unlawful detention, torture,
or a kangaroo court.

3) Facts are just facts, not abuse, and the arguments you employ to justify or excuse torturing people are the same excuses the Nazis and Soviets used.

Now quit with the quibbling and evasion. The questions I've asked aren't unreasonable or unclear in the least.
 

As to Marty's suggested "don't respond" recommendations.

No one here is a stronger First Amendment advocate than I, by any metric you care to bring forth.

But.....

What Marty is reacting to (and he can correct me if my guess is wrong) is not so much offensive speech or even an offensive poster, or even a contrary and odious viewpoint being posted; instead it is the use of the thread itself.

I am quite new to this blog, but in certain topic areas, the mechanics of the threads play out the same over and over. I need not even spell out the details..they are familiar to all here.

Marty probably would like threads to be a forum for discussion on the proposed topic, rather than everyone having at it with one contrarian poster.

Now it may be the case that the latter method does bring out details in the main topic that might otherwise not be explored, but often the colloquoys go far afield from the thread host's intentions.

So I don't think Marty is engaged in censorship of speech so much as he is trying to manage a somewhat unruly courtroom.

Anyway, if Marty asks of his posters to obey certain rules of the road, I will generally try to comply.

The risk we run in doing otherwise may be in discouraging Marty from posting thread topics, and I for one would absolutely hate to hear his voice silenced even if of his own volition.

But to Marty: The dynamics playing out here are simply unavoidable. There can always, be nay-sayers and contrarians in any forum, and the group dynamics will always work in the same manner. Of the majority position trying to scotch the irritant: first by reason, then by increasingly strong language, then by vituperation, and eventually, baffled, by reason again. If the nay-sayer has a sufficiently tough hide and stays around (and like our current contrarian shows ample signs of intelligence and logic), he/she becomes a lightning rod and yes, a sounding board, for the prevalent positions. And everyone wins (except the frustrated thread host who sees his/her topic "highjacked")
 

Humorous aside: it takes a great deal of chutzpah to ask Mourad if he is familiar with the CAT!!
 

Bart,

I just want to focus on one part of what you wrote as others have focused on other parts.

You write:

"Yoo provided some guidance where there was none before. I think we both probably thought the line Yoo set went way too far, but in Yoo's defense it was the only definition Congress ever provided for the term "severe pain.""

Bart, this is simply not true - his standard is made up from whole cloth. This is the thing I tried to explain in my piece at Jurist on the Yoo March 14, 2003. The link for the piece is http://jurist.law.pitt.edu/forumy/2008/04/yoo-torture-memo-break-silence-of-lambs.php

I will reprint the relevant section here.

"III. The hole in the “severe pain” analysis

The Yoo memo tries to set out what interrogators could do. For that to be done the memo had to define “severe pain” from the torture statute.

The relevant sections of the memo are around pages 36-39 and 40 where it is stated:
Section 2340 defines the act of torture as an: act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control....

The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering." In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be "severe." The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Webster's New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572(1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances ...: hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.

Congress's use of the phrase "severe pain" elsewhere in the U. S. Code can shed more light on its meaning. See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) ("[W]e construe [a statutory term] to contain that permissible meaning which fits most logically and, comfortably into the body of both previously and subsequently enacted law.). Significantly, the phrase "severe pain" appears in statutes defining an emergency medical condition for the purpose of providing health benefits. See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000). These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are, likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.
One weakness of the rules of statutory construction (or rules of interpretation) approach is that everyone knows (as said Justice Kennedy in 2006 at the Nabrit Lecture at Howard Law School) that one can always find a rule that works for what you want to do.

I could spend time trying to look for this or that rule and focus on said rule as an alternative to the Yoo approach. The essence of this approach is that my discussion here would become kind of a more sterile exercise of "ah yes there are many ways to do this" and we would proceed off to our next article. For example, one could try to look at the same statutory language under a cumulative approach and look at the variety of answers and say isn't that fascinating. One is left with a kind of bewilderment at the possibilities.

Sorry to speak plainly, but I think JURIST would want me to speak plainly. Maybe because I am too lazy or something, I simplified my life a bit by taking Yoo at his own words. I assume that he means the words he writes so I look at them.

IV. Taking Yoo at his own words

For example Yoo says the medical emergency standard is:
These statutes define an emergency condition as one "manifesting itself by ,'acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ...
(i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added).
This language is the same in the other statutes to which Yoo refers in that section of the text (See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000)).

Note that language and then note the next sentence which is on page 38:
They treat severe pain as an indicator of ailments that are, likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function.
But none of the statutes Yoo cites treat the damage as that rising to the level of death, organ failure or the permanent impairment of a significant body function.

Yoo's language in the sentence above on its face appears to contemplate to me a definition that restricts "severe pain" to something more narrow than does the statute to which he has chosen to make reference - let alone any more capacious definition from another rule of construction.

The language of the statute he cites does not make reference to anything permanent - it focuses on seriousness. While it could certainly contemplate at the high end of its seriousness - quoting further - "physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."

It also can include lower level types of seriousness that he has decided to exclude. So while starting from the language of a statute, to which he refers pursuant to a rule of construction, what he is doing is putting his own gloss on that statute – giving his own hypernarrow definition of "severe pain". No statutory backup for that Yoo version.

In his own words, and I believe that he believes what he wrote, he is giving advice that "severe pain" (Yoo version) is not "severe pain" (statute version) - a nice sleight of hand it seems to me. As we can presume he specifically intended to write this memo, his words are done with the specific intent of narrowing the limit of what is prohibited.

The difficulty that Yoo faces is that a prosecutor might say that even on the basis he has taken (the statue to which he refers), the rule prohibits more types of actions than Yoo’s standard prohibits. Putting it another way, Yoo got it wrong and the consequence of his getting it wrong was that those who relied on his wrong analysis did acts that were severe pain (meaning torture). His pen flowed to torture.

And the prosecutor could argue that Yoo was not mistaken out of "misfeasance" but rather "malfeasance" in that Yoo was working overtime to come up with narrowed rationalizations that would "protect" those below when they did acts that were in fact torture: he had the specific intent required for conspiracy to torture for example.

The prosecutor could bring in someone who for example tortured Murat Kurnaz and ask him to tell what he had done and whether he had been instructed to do that and by who, etc. and up the chain until you find where the Yoo memo was made operational.

Working on Yoo's standard, the fact that they brought in a doctor every 6 hours to check if Murat Kurnaz was still in good enough shape to be hung up indicates to me that - even with the doctor saying the guy was OK - "a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ...".

That lay person might not consider the damage "permanent" (Yoo's word sleight of hand) but enough to meet the standard of the statute cited by Yoo.

It is Yoo who then takes the step to push even the statute he is citing to an interpretation that permits torture. That was his choice and I presume that he had the specific intent to write the analysis that he did. That conduct is his actus reus and from conduct one can intimate mens rea - though I expect that from the collection of his work there may be further evidence that corroborates the mens rea.

After all, Yoo states in his interview in Esquire:
The other thing I was quite conscious of was I didn’t want the opinion to be vague so that the people who actually have to carry these things out don’t have a clear line, because I think that would be very damaging and unfair to the people who are actually asked to do these things. The way I read what the department did two years later, was they just made the line blurry again. And -- you can have the dispute -- you can say I don’t think the line you’ve drawn is in the right place. That’s fine. But I think its not fair to say, which I think they did, which I feel -- people say its slapdash -- I think it’s not right when they say “I don’t want to be very clear.” Because that’s just people protecting their own backs. So...
He had the specific intent to do what he did. And what he did was create a standard for “severe pain” out of whole cloth that was unsupported by the statute he cited.

V. Breaking the silence of the lambs

For those who relied on this Yoo standard (such as the Working Group at the Department of Defense who were required by the General Counsel to write their analysis based on the Yoo memo, or anyone else above or below Yoo who operationalized the Yoo memo) they would assert reasonable reliance on the Yoo analysis to seek to avoid criminal prosecution. However, from what I showed above, the Yoo analysis is untenable on its face. In addition, given that the exercise I just went through took me about five minutes of looking up the relevant statutes that Yoo cites, I must question whether any lawyer in this process or layperson with the reasonable sense to ask a lawyer to check the point could be seen as being reasonable in relying on a “severe pain” standard that is made up from thin air.

I would think a question might be asked as to where the Yoo-included-language came from since it is not in the statute that Yoo cites. I can speculate on where it might have come from (a Presidential finding?).

The key is that a jury confronted with this evidence would not consider the Yoo standard as reasonable and would not consider reliance on that standard as reasonable. That would appear to me to leave open a great number of persons as potentially criminally liable for the acts that occurred pursuant to this memo. Of course, the memo has been withdrawn, but all those persons in the chain of command in the relevant 2003 period who operationalized the Yoo standard should be contacting lawyers. Maybe that is the reason that so many potential persons of interest are denying any knowledge of the memo at this time. I cannot believe them. There has been too much of this obfuscation about detainee treatment.

Ah, if the ASIL would have put its considerable authority behind the idea of further investigation of these points that would have been nice, but, of course the resolution was “inadmissible.” Civil society wants silence. The military and civilian authority wants silence.

This reminds me of the Lions for Lambs comment. The recent movie Lions for Lambs takes its name from a comment made by a German officer during World War I, comparing British soldiers' bravery with the calculated criminality of their commanders. All that the elite appears to want is silence from the lions so that the lambs escape liability.

As I have said before, not good enough. To keep our honor clean, break the silence of the lambs. All we need is evidence, a prosecutor, a grand jury indictment, a trial, and a conviction. Bring light. Bring light."
 

charles gittings said...

When asked to give his definition of torture:

I mean simply any and all forms of intentional verbal or physical maltreatment.

Finally.

How many folks here think that "intentional infliction of severe physical or mental pain" means "any and all forms of intentional verbal or physical maltreatment" as does Mr. Gittings?

Exhibit 1 for my case that the definition of torture is so malleable that it can people in good faith believe that the line of what is impermissible to can range from telling a prisoner that his mother is a whore as does Mr. Gittings to the Senate debate describing the line as excruciating pain.
 

Ben:

I agree that the use of the medical treatment definition does not work well and provides poor guidance. However, I cannot agree that the dictionary definition of "severe pain" provides any guidance at all. See the myriad of interpretations of this language offered here and in dozens of previous threads.
 

I thought you were going to answer my questions Bart. Instead, you proceed to another quibble about the meaning of "severe", which begs a further question:

Just exactly how do you define that?

I know how I define it in the context of torture: whatever amount of pain the perpetrator thinks will coerce the victim to speak or act -- and there isn't any doubt that the person inflicting the torture is doing it in the belief that it will do just that. And spare us any further regurgitation of Yoo and Addington's lying BS -- it's like quibbling over how much malice is enough to consider a homicide a murder.

And that's for a judge and jury to decide in any case.

Now do you suppose that you could quit evading my questions and address the discussion?

We've heard you arguments and get that you think these disgraceful war criminals have a valid defense. It's equally clear that I have a different theory. What I'm trying to do is get down to the basic issues, now could you please answer my questions?
 

Bart,
I hear you on the medical definition. Of course this only aggravates how hopeless the Yoo analysis definition of severe pain is.

My emphasis though is on the fact that Yoo did NOT use the medical definition which is the language that "Congress wrote". If he had done that then the standard would have been something like

"manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part."

Note that the word "permanent" is no where in that statutory definition (assuming for arguments purpose only that it was appropriate for Yoo to go this route). So even on the route he went Yoo did NOT follow the statutory definition that you accept is poor guidance.

What Yoo did is create a whole cloth definition beyond "serious" impairment to argue "permanent" impairment etc.

The point is that the "permanent" line Yoo set is "bullshit" that left the war fighters out in the cold of their UCMJ obligations. And that is coupled with his Commanded in chief authority to override the UCMJ obligations that left those grunts in Abu Ghraib out in the cold in their court martials. The REMF's didn't even have the cojones to release the March 14, 2003 memo at the time of the court-martials so that Graner and England and the rest could run that argument in their defenses. Why? Because the REMF's knew that the link from Gitmo to Abu Ghraib would be made and the pictures would be linked back to the REMF torture team. That is one more reason why the REMF's are pieces of shit.

(For those who do not know the term REMF it is a Vietnam era term in the military for Rear Echelon Mother Fuckers.) Another one is "the suits". Correct me if I am wrong Bart on those definitions of those terms.

Peace,
Ben
 

["Bart" DeDicta, to Charles]:

Provide your definition of abusive and then I will gladly show you the differences between that definition and those used for other felonies in CO.


"Bart", CHarles asked for your definition of "cruel and unusual". You first.

As to your contention that name calling somehow equals torture, I would remind you of your kindergarten lessons:

Sticks and stones can break my bones, but words can never hurt me.


No, but they can emphasise your stoopidity. And you have no right to complain, assuming you've gotten beyond kindergarten....

Abusive language, FWIW, can be humiliating. Consider, e.g. the sorry past history of the famous 'N-word' and the deep hurt that it inflicted on people of colour....

BTW, it took all of my self restraint to keep from leading off snarking that you had just violated your own understanding of the torture statute by calling me a Nazi. Turn yourself in to the FBI for prosecution.

That's not name-calling, "Bart". It's simply a descriptive appellation. And you shouldn't take offence, either, seeing your ideological alignment with these people.

Cheers,
 

"Bart" DeDicta:

Military and economic hard power usually discourages such acts of war [as charging CIA agents as war criminals] against our citizenry.

Pretty funny, having been posted this particular Friday with the unemployment rate up 0.4, oil at record prices, and the DOw off 400.

That leaves "Bart" with the military power. Welcome to the Fourth Reich....

Cheers,
 

Ben:

Another reason why REMFs are pieces of shit?

:::smile:::

You wouldn't happen to be a former combat arms troop, would you?

If not, you have the definition of that term down just fine.

After serving as a grunt for about 7 years. I left the service for law school because all I was doing was demobilizing units and did not want to be part of the Army version of That 70s Show.

Anyway, the military did not forget about me and in the middle of law school tried to activate me to command a postal company in Bosnia. Now, I had done my service than then some, so they really had no legal claim on me. However, while consciously avoiding telling them there was no way in hell I was going to serve in a REMF unit, I did volunteer to take an infantry company if they wanted me back. They deferred. Apparently, a 33 year old officer is OK to command the REMFs, but too old for the infantry.

Oh well...
 

Benjamin Davis wrote:-

The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering." In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be "severe." The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Webster's New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572(1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances ...: hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure."

Forgive me, but does anyone, other than Bart, forsee any difficulty in crafting perfectly proper directions to a jury on what constitutes torture based on what is contained in that paragraph?
 

"not i" ..said the kat ...
 

Bartbuster said,
>>>>>No, I don't think that Bart DePalma has said anything to justify censorship.

I think that is completely up to the person running the blog, and what kind of blog they want it to be. <<<<<<

Whether the bloggers on this blog realize it or not, they are under a particularly heavy obligation to avoid arbitrary censorship of visitors' comments because this blog is frequently cited by law journal articles and might someday be cited by court opinions (if not so cited already). Jack Balkin said,

In 2003 we received 1 cite; in 2004 3 cites; in 2005 14 cites; in 2006 36 cites; and in 2007 49 cites. As Orin reminds us, some law journals have not yet published all their 2007 issues, so the final number for 2007 may be slightly higher.

Blogs where visitors' comments are arbitrarily censored have no credibility and should never be authoritatively cited by any authority.
 

Bart,

My dad was WWII and I had uncles in the Army out of Fort Dix and as ground crew for the Air Force in Vietnam. I turned 18 in 1973 when the draft numbers were still given but the lottery stopped (and I did not volunteer to go to Vietnam). By Gulf I, I was a 35 year old fart living in Paris. This is all to say I have never been in the military. The things I have learned have been from former military colleagues who are professors of law or some of my students who are in the military or desire to become JAG's. I find that "common law" or "common lore" of the military ("grunt wisdom may be a better term") very precise and powerful ways of explaining so much in so little time.

The one that got me there the most is "shit rolls downhill" which a law student told me who desired to go into the JAG corps. I had never heard that. My whole thing is not command responsibility or anything like that but more "make shit roll uphill". That is why I have actually a certain amount of empathy for the folks in the bottom of the pile - though I think they still betrayed their oath and country by following those orders.

I have an article on my website that talks about making shit roll uphill in some 90 odd pages. It will come out some time this summer (been with the review for a while but these things take time). I came up with the help of some friend with the latin version of "make shit roll uphill" which is "Refluat Stercus." I even made T-shirts.

So I hope that gives you a sense of where I am coming from. I also noted the reaction of WWII and Vietnam vets to FUBAR and SNAFU - terribly precise and profound grunt wisdom.

On Mourad's post, that language is actually part of the Yoo memo. The point made actually strengthens the point of just how much of a departure that Yoo did with his bullshit analysis that pushed past the medical condition statute.

Peace,
Ben
 

The father of our country said:

"Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause... for by such conduct they bring shame, disgrace and ruin to themselves and their country."
 

Ben,

REMF Here!! ("Twinkle, twinkle little shield; Keep me off the battlefield" --a catchy phrase of that time that other veterans will surely remember), My trajectory in the service differed from yours and Barts. I was tempted to use "REMF" in earlier posts on this blog but abstained since I knew I was a prime example! It is interesting that almost 40 years have gone by and I still find myself using old terms like "di di" and "skoshie" "strack" "get on the horn", "ricky-tick",etc.

Duffy, Hargraves: if you are some of the lawyers auditing this blog, I would like you to remember back to when we handcuffed Cpt. Duffy! Memories!?!

Michael
HHC
4th Inf Div (formerly)
 

Sorry Ben,

I read your post too quickly and thought it was you who were ground crew. No matter. Everyone who lived in that era felt the effect of that war and is a veteran to some degree or another.

Thanks for the clarification on the quote. It is obvious in your Jurist article that it is a quotation (indent text was used) but it was a bit confusing on the post.

I thought the language was from the March 6, 2003 Working Group Report...was that Yoo's language being employed?
 

I do suspect though that words like "honor" and "disgrace" probably cannot be "objectively defined."
 

This comment has been removed by the author.
 

torturing captives is dinky dao lads .. no soldier ..sailor..airman .. or marine benefits from a policy of torture .. and they're all trained against it ..the most serious risk is surviving the hurley-burley of battle and not getting killed while trying to surrender .. once the hub-bub has blown by and things settle down .. no captive should ever have reason fear for their life or personal safety ... provided they follow instructions ..and cease resistance ..

the evidence and opinion here concerning torture overwhelmingly demonstrates:

[1] a supermajority thinks "there's something wrong " in the Yoo memos ..

[2] torture is against US and International law.

[3] torture is a thing no american wants practiced "in their name"

[4] our single british contributor objects as well and eloquently bases and substantiates that objection in laws with centuries of precedent.

i'd submit no government which engages in torture is worthy of our respect and it's justification or rationale of such conduct is simply an exhibit of it's being worthy of shame ..and rejection ..

despite attempts to obfuscate the issue .. the matter is very clear .. and the evidence is damnning indeed ..

the quote from george washington is most apt and wisdom for the ages .. too bad our current crop of anti-intellectuals-at-the-helm never read that one .. eh ??
 

Michael,
Please let me know what "di di" and "skoshie" "strack" "get on the horn", "ricky-tick",etc. mean. I doubt it is germane here so please send to ben.davis@utoledo.edu.

I have great respect for veterans who actually believe in that duty honor and country stuff.

As one guy said, I did not join the army to kill civilians. Geneva in a few words.

Best to everyone. I also just saw an article in the Washington Post in which 60 Democratic Congresspersons call for a special prosecutor for high-level REMF's. We are getting there.

No problem on the quote. I just wanted to come back to make it clear what was Yoo and what was me.

Peace,
Ben
 

Benjamin Davis cites the Yoo interview with Esquire Magazine:-

“The other thing I was quite conscious of was I didn’t want the opinion to be vague so that the people who actually have to carry these things out don’t have a clear line, because I think that would be very damaging and unfair to the people who are actually asked to do these things.”

As Mr Davis points out, this is an admission of specific intent on Yoo’s part. It goes further.

The phrases ”the people how actually have to carry these things out” and “the people who are actually asked to do these things” seems to be a clear admission that instructions were being given to carry out ”these things”, and it seem to me to germane to enquire who was giving the instructions.

Note also the careful choice of words: ”these things” For me, and perhaps for others, these words suggest that Yoo was only too well aware that what people were being asked to do were things which he well knew the public would find repulsive and criminal.

Serviceman and women have been court-martialled or otherwise disciplined on the “few bad apples” footing that what went on at Abu-Ghraib was contrary to their duty. It seems to me that there is now a very plausible case to be made that what took place was in fact mandated at the highest level.

In the UK the Service Chiefs have the advantage that the armed forces owe their allegiance to the Crown (service Commissions are to this day signed by the Queen)rather than to the government, and they can demand of the Prime Minister that steps are taken to vindicate the honour of the armed forces. In default of a satisfactory response they resign and say why.

[BTW in the case of the invasion of Iraq they demanded an opinion in writing from the Attorney General that the war was lawful - which they got - and which is now causing the then AG some grief in that it has probably scuppered his chances of ever becoming one of HM Judges - the usual reward for AG service].

I suppose there will an equivalent military right of access to the top level in your system. Maybe the time has come for the Joint Chiefs to use it.

The call for a special prosecutor seems to be about right in the circumstances and perhaps among his/her deputies there should be some members or former members of the JAG corps.
 

Bart,

Still no answer to my questions?

Instead, another quibble by way of misrepresentation...

Bart: "When asked to give his definition of torture:

Me: 'I mean simply any and all forms of intentional verbal or physical maltreatment.'

Bart: "Finally. How many folks here think that "intentional infliction of severe physical or mental pain" means "any and all forms of intentional verbal or physical maltreatment" as does Mr. Gittings?"


So there's a couple of things to notice...

* I was stating a definition of "abuse", not torture, which I had defined earlier in the discussion.

My response was off the top of my head, but looking at Black's Law Dictionary for "abuse" we find:

"1) A departure from lawful or reasonable use; misuse.

"2) Physical or mental maltreatment."

* I did not say that all abuse, such as calling someone's mother a whore, is torture. What I said, in response to yet another of Bart's endless quibbles, was that "torment" (and torture) involves the intentional infliction of abuse. For example, if a guard gets angry and says "your mother's a whore", I'd consider that a petty instance of abuse, but I wouldn't call it torture. If on the other hand, such a statement is part of calculated regime of abuse, it most certainly is a form torture -- and the difference is the intent of the act, not exactly a novel or unusual consideration in criminal statutes.

Yet this all so fuzzy and unclear to Bart that the poor fellow just can't seem to understand a single word I say. The reality of corse that Bart is deeply ensnared in the web of lies he uses to manufacture apologies for war crimes.

But he did give me an idea when he mentioned Colorado's laws... perhaps some light might be shed on Bart's linguistic difficulties by looking at a Colorado criminal statute. For instance, here's section 18-9-202 of the Colorado Revised Statutes:

CRS 18-9-202 (Cruelty to animals):

"(1) (a) A person commits cruelty to animals if he or she knowingly, recklessly, or with criminal negligence overdrives, overloads, overworks, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, allows to be housed in a manner that results in chronic or repeated serious physical harm, carries or confines in or upon any vehicles in a cruel or reckless manner, engages in a sexual act with an animal, or otherwise mistreats or neglects any animal, or causes or procures it to be done, or, having the charge or custody of any animal, fails to provide it with proper food, drink, or protection from the weather consistent with the species, breed, and type of animal involved, or abandons an animal.

"(b) Any person who intentionally abandons a dog or cat commits the offense of cruelty to animals.

"(1.5) (a) A person commits cruelty to animals if he or she recklessly or with criminal negligence tortures, needlessly mutilates, or needlessly kills an animal.

"(b) A person commits aggravated cruelty to animals if he or she knowingly tortures, needlessly mutilates, or needlessly kills an animal.

"(1.6) As used in this section, unless the context otherwise requires:

"(a) "Serious physical harm" means any of the following:

"(I) Any physical harm that carries a substantial risk of death;

"(II) Any physical harm that causes permanent maiming or that involves some temporary, substantial maiming; or

"(III) Any physical harm that causes acute pain of a duration that results in substantial suffering."


It's really quite remarkable to observe just how much of that statute mirrors the present debate over the treatment of detainees by the Bush administration. It's also apparent that the Colorado State Legislature doesn't think terms like "torture", "torment", and "abuse" are nearly as confusing or ambiguous as Bart would have us believe.

The kicker here is that Bart and the Bush administration quite obviously think there's a lesser standard of treatment applicable to human beings than the minimum standards applicable to animals in the state of Colorado. But Bart doesn't want to talk about THAT, which is why he quibbles and dissembles instead of answering fair questions with straight answers.

But my questions are still waiting Bart -- why can't you simply answer them?
 

Charles said: "The kicker here is that Bart and the Bush administration quite obviously think there's a lesser standard of treatment applicable to human beings than the minimum standards applicable to animals in the state of Colorado."

I can recognize a good closing argument when I hear one. All one would have to do is to present to the jury the image of the family pet being forcibly restrained and waterboarded....

Charles, you are on to something here.
 

charles:

That was a great comparison between the torture statute which just offers the general prohibition against intentional infliction of severe pain and the Colorado statute CRS 18-9-202 which includes a laundry list of specifically prohibited acts.

Indeed, I have personal experience defending clients against CRS 18-9-202 from overzealous police who like think that their personal views of what constitute animal cruelty are self evidently part of the statute. Two months ago, I convinced the DA to dismiss cruelty against animals charges against one of my rancher clients specifically because the animal control officer's idea of cruelty (the rancher's horse ate some native loco weed, sickened and then was killed by a mountain lion while in that weakened state) was not specified in the statute.

I could not have come up with a more perfect example of my point. Thank you so very much much. I was not thinking of these cases when I suggested we look at CO law.
 

michael said...

Charles said: "The kicker here is that Bart and the Bush administration quite obviously think there's a lesser standard of treatment applicable to human beings than the minimum standards applicable to animals in the state of Colorado."

I can recognize a good closing argument when I hear one. All one would have to do is to present to the jury the image of the family pet being forcibly restrained and waterboarded....

Charles, you are on to something here.


That would be easy to dispose of in closing arguments for the defense:

Ladies and gentlemen, the prosecutor Mr. Gittings appears to be having a hard time telling Lassie and Khalid Sheik Muhammad apart.

Lassie is man's best friend.

Khalid Sheik Muhammad is an al Qaeda terrorist leader who is at war against the United States.

Khalid Sheik Muhammad was the architect of the 9/11 attacks which killed 3500 of us.

Khalid Sheik Muhammad was planning the mass murder of thousands more of us when he was captured.

Khalid Sheik Muhammad is not Lassie nor should we treat him as such.

Mr. Gittings is also confusing the civilian criminal code and the laws of war.

Nearly every act permitted in war against enemy combatants is not permitted against civilians.

I served in the Persian Gulf War as an infantry officer.

If civilian law applied that war, my platoon of soldiers be guilty of about 500 counts of premeditated murder of Iraqi soldiers, about $150 million of criminal mischief for destruction of Iraqi property, several dozen counts of kidnapping and assault for taking Iraqi prisoners.

This case is about war and things done during war and is not an episode of Lassie.

[The latter argument should get an objection, but Mr. Gittings would probably not know that]
 

Charles Gittings:

The kicker here is that Bart and the Bush administration quite obviously think there's a lesser standard of treatment applicable to human beings than the minimum standards applicable to animals in the state of Colorado.

They're not human beings. They're Al Qaeda. They're The Enemy. They're less than animals and may be summarily executed and should be thankful that they've only been tortured ... so far....

</BartThink™>

Cheers,
 

Amasing:

I wrote my last post (just above) before I read "Bart"'s last post on this thread....

Am I a geenyuss or not?

Cheers,
 

Bart,

War and custody are two different arenas of governmental action and different constrainst operate on each. In war, as you know, a sniper may put a bullet in the head of a non-uniformed enemy combatant with no criminal sanction.

If you take that same sniper and have him put a bullet in the head of an enemy combatant in the yard of some detention facility, you indeed have a criminal act.

Once a person is under custody and restraint, all kinds of protections crop up in war or peace.

This brings up the torture of detainees:

To what extent does CIL and the international treaties and conventions to which we are signatories bind US treatment of detainees especially in respect to torture?

Here, as best I can understand it, is the Administration's position:

Customary International Law

The current administration was advised by its Office of Legal Counsel in a memorandum of early 2002 that CIL does not restrain the American Executive in the treatment of detainees. Their language:

"...any presidential decision in the current conflict...would constitute a 'controlling' Executive act that would immediately and completely override any customary international law."

So much for CIL.

Treaties and International Conventions

Those treaties we signed and ratified and have not since withdrawn from, were all ratified with Understandings and Reservations.

These U&R's served variously to reject international definitions of torture and substitute our own language which we all know by heart now; to reject jurisdiction of international courts such as ICC; to reject causes for civil action; to reject application to acts committed outside CONUS; to reject Al-Qaeda and unlawful combatants as being granted the protections of the third and fourth Geneva Conventions; to deny as self-executing important implementing features of the treaties.

But don't detainee treatment abuse including torture and prolonged incarcerations represent 8th Amendment violations in light of jurisprudence of the last 60 years?

Bart, before you quickly reply that the detainees are not granted Constitutional protections, bring to mind that we ratified the international treaties with the understanding that our own nationals (read interrogators) were so bound not to inflict such treatment.

from a 11 Oct 2002 memorandum to the Commander, Joint Task Force 170:

{6}b (u)Domestic Law: Although the detainee interrogations are not occurring in the Continental United States, U.S. personnel conducting said interrogations are still bound by applicable Federal Law, specifically the Eighth Amendment of the United States Constitution,..."

When we ratified UNCAT we made reservations that the treaty torture prohibitions were to be understood only in the context of 5th, 8th, and 14th Amendment violations.

In regard to a hypothetical definition of torture that would give rise to a laundry list of behaviors constituting torture:

"The exact scope of the constitutional phrase "cruel and unusual" has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards"

"The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

Trop v. Dulles, 356 U.S. 86, 101 (1958)

So much for a laundry list.

In Charles Gitting's apt comparison, we would not allow waterboarding of a cocker spaniel. Why? because it is facially cruel and inhumane.

So if by international treaty our interrogators are bound by the Eighth Amendment, and waterboarding is facially cruel, unusual, and inhumane to boot, then why is it not obvious that they are in violation of our own standards?

Now the government will defend by saying that as long as there was no primary intent to cause physical or mental harm and that a legitimate governmental purpose was served, then the Eighth has not been violated.

I don't think that defense holds up.
 

Marty said "I look forward to Times stories about the earth, "which is described by some as round and as revolving around the sun.""

Well, given what is going on in Texas and their science curriculum, we may well see a Times story about evolution v. creation science:

"at issue is the study of living organisms, which some say are effected by evolutionary processes"

or

"textbooks teaching about the history of the earth, which some say is older than 4000 years."
 

Well you are very welcome Bart, but needless to say your view of what's significant about the comparison there isn't necessarily the same as mine...

Now do you suppose you could quit trying to misrepresent or misconstrue what I say and simply answer my questions, please?

Seriously.

As for your latest non-response, let just say two things:

1) I know a lot more about the laws of war than you do, and we've been over that ground enough that there's no need to rehash it here. We are talking the abuse of defenseless prisoners who are 'hors de combat' (out of action), so quit trying to change the subject.

2) Colorado's "laundry list" contains a few items that bear a distinct resemblance to the torture statute's "general prohibition".

Like for example...

"Any physical harm that causes acute pain of a duration that results in substantial suffering."

Is distinctly similar to...

"[A]ny act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual."

When you describe "overzealous police who like [to] think that their personal views of what constitute animal cruelty are self evidently part of the statute", the implication isn't that the statute is unclear, but that the officers unreasonably applied it to innocent acts. The situation is absolutely identical with any statute: some act are proscribed by it, all other acts are not, and a reasonable person is presumed to be able to understand the difference. Courts and jurys are presumed to be able to make reasonable judgments about the facts of a particular case.

And that's what I'm trying to do here -- that's why I'm asking these questions you keep dodging. This isn't complicated -- we both say that some acts are torture and some aren't, the only real difference is that where I say all intentional coercion is torture, you say some intentional coercion is OK. So there is one set of methods we both think are torture, and another set of methods that you think are legal while I consider them torture just as much as those we agree on.

My questions presume arguendo that your view is correct, and I'm asking in order to look at where you think the line is -- but you don't even want to talk about it.

A second issue here is who is or isn't subject to these disputed methods under what circumstances, again, assuming arguendo that you're correct. You don't want to talk about that either.

But I'm still asking.
 

michael said...

Bart, War and custody are two different arenas of governmental action and different constraints operate on each.

Not quite.

The point I was making with Mr. Gittings misuse of the animal cruelty statutes is that war is quite different from civilian criminal law and we do treat the enemy far worse that our pets, even our captured enemy.

The default condition of war is to kill the enemy on sight.

Western nations developed a code of reciprocity that I will treat your captured combatants as well as you treat mine. If you kill my captured soldiers, I will kill yours.

GC III, Article 3 modified that common law by prohibiting a signatory from the following acts against any capture, even if the enemy is performing these acts against your troops:

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

(b) Taking of hostages;

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

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

However, enemy combatants who do not themselves follow the laws of war have no other rights, including those we extend to our pets under the civilian criminal codes.
 

charles gittings said...

Colorado's "laundry list" contains a few items that bear a distinct resemblance to the torture statute's "general prohibition".

Like for example...

"Any physical harm that causes acute pain of a duration that results in substantial suffering."

Is distinctly similar to...

"[A]ny act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual."


You are correct that this one particular element of an otherwise comprehensive and objective definition of the term "physical harm" is ambiguous. However, when read in combination with the rest of the definition, the jury should have a reasonable idea of that is prohibited. Indeed, it does not appear that waterboarding the animal would fall under this definition.

My questions presume arguendo that your view is correct, and I'm asking in order to look at where you think the line is -- but you don't even want to talk about it.

My position is that it is impossible to set such a line under the current treaty and statutory language. I am not ignoring your question. Rather, that is my answer.

If you are asking my personal line which I would permit if I were King, I have no problem with the CIA program, although I am ambivalent over waterboarding.

The reason I do not reject waterboarding out of hand is that the act is brief, without pain and appears to be extremely effective in gaining actionable intelligence when everything else fails.

A second issue here is who is or isn't subject to these disputed methods under what circumstances, again, assuming arguendo that you're correct. You don't want to talk about that either.

We have discussed this repeatedly. GCIII, Art. 3 does not prohibit the CIA coercive interrogation methods, but Art. 4 applying to privileged POWs does. Thus, unprivileged POWs can be subject to these techniques.

However, I prefer the Administration's restriction of the more severe techniques like waterboarding to a few high value targets who will not provide intelligence under any other method. Remember, we are only talking about three waterboarded al Qaeda out of thousands who were captured.

I know you disagree, so let us leave it at that.
 

Bart, Not until now have I seen why you arouse such frenzy on the part of your verbal sparring partners here.

The turning point is rights of the detained versus duties of the detainers.

We are not free to do as we will with our captives. We do have to treat them better than animals.

Please bone up on these not-so-subtle distinctions.

Anyone in the custody of our military detention facilities, irregardless of nationality, combatant, partisan, guerrilla, terrorist, status is afforded a minimal floor of treatment which excludes the use of physical force to include light striking, shoving, painful binding, and enforced stressful postures.

For a lawyer to come in and to tell the facility that they are now free to disregard these restraints and treat the prisoners as animals or even worse than animals would prompt the facility commander to fire off a "Who sent this guy?" question to the service JAG.

Now since ALL the service JAGS have testified in Congress that waterboarding is verboten, than what do you suppose the answer would be?

And this about the way it played out in real life. The administration tried to manhandle the service JAGS and failed miserably. In retaliation, it attempted to insinuate itself into the promotion process and use that leverage to punish dissenters.

From the Boston Globe:

"The Bush Administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House’s policies toward prisoners in the war on terrorism. The administration has proposed a regulationrequiring “coordination” with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps—the military’s 4,000-member uniformed legal force—can be promoted."

"Retired Major General Thomas Romig, the Army’s top JAG from 2001 to 2005, called the proposal an attempt “to control the military JAGs” by sending a message that if they want to be promoted, they should be “team players” who “bow to their political masters on legal advice.” It “would certainly have a chilling effect on the JAGs’ advice to commanders,” Romig said. “The implication is clear: without [the administration’s] approval the officer will not be promoted.”


This is so slimy it defies description, but it is perfectly emblematic of the hell this administration has visited on both civilian and military career professionals over the last seven years. Everyone with a conscience has either been fired, taken early retirement, left the office, or had to self-censure. I imagine at State its been the same story.

Your proposition that prisoners not subject to the Geneva Conventions can be treated like animals or worse than animals is simply....

well, words fail.
 

what rights unlawful combatants might have is curretnly being decided by the USSC ..and previous rulings from USSC don't mesh with your views... the decision is not yours to make..

secondly we aren't simply dealing with three al queda who have been waterboarded .. we've got 108 dead detainees bodies on our hands..

the magnitude of the crime isn't the abuse or torture of only three detainees... the magnitude of the crime is serial homocide under color of authority ...
 

Bart De Palma wrote:-

My position is that it is impossible to set such a line under the current treaty and statutory language. I am not ignoring your question. Rather, that is my answer.

If you are asking my personal line which I would permit if I were King, I have no problem with the CIA program, although I am ambivalent over waterboarding.

The reason I do not reject waterboarding out of hand is that the act is brief, without pain and appears to be extremely effective in gaining actionable intelligence when everything else fails.

However, I prefer the Administration's restriction of the more severe techniques like waterboarding to a few high value targets who will not provide intelligence under any other method. Remember, we are only talking about three waterboarded al Qaeda out of thousands who were captured.


In other words, Bart, where you are coming from is that:-

1. You, Bart, think the objective of obtaining information by any means, including torture is desirable and if you had absolute power you would permit it.

2. Therefore, you think the CIA should be allowed to use torture to extract information.

3. Therefore, you think that it is permissible for the government legal service to try and devise ways and means to ensure acquittal of torturers.

4. You consider that the fact that the people of the United States of America by the Congress have seen fit to outlaw all forms of torture and inhuman treatment of prisoners of any kind in US custody does not matter.

You say ”if I were king”. I think what you are in fact contemplating is a post as "Duce" or "Caudillo". I can only hope the institutions of the USA are strong enough to keep that possibility within the realm of fantasy.

But I repeat my earlier question. In your delusional dreams about having absolute power, did you consider your seal of office for Secretary for Torture: Crossed Electrodes on a field of vomit and blood perhaps? A Swastika or Fasces bound to an axe would be sooo 1930's, you know.
 

The reason I do not reject waterboarding out of hand is that the act is brief, without pain and appears to be extremely effective in gaining actionable intelligence when everything else fails.

Granted, there is quality of beating a dead horse to tangling with Bart, but...

Do you have any evidence for this claim? Or are you in Justice Scalia's camp, and your evidence for the efficacy of torture comes from watching Jack Bauer on the telly?

Also, to say that waterboarding is "painless" is another in a venerable litany of mind-boggling statements from Bart. Suffocation, whether you consider the discomfort to be physical or psychological (and maybe it resists such classification) is quite plainly excruciating. If it wasn't I dare say Bart wouldn't be so enamored with it.

Anyway, I fault myself for letting a doofus like Bart get under my skin.
 

I am hoping this is the 100th Comment. Do I win anything? Like a response from ML to my comment, which was actually responsive to his post.
 

Doh!
 

Jkat,

Your point is well-taken. Waterboarding is not by far the worst of the offenses against detainees this administration has committed...

The "Ice Man" photograph comes to mind....
 

mattski said: "Anyway, I fault myself for letting a doofus like Bart get under my skin."

Arguing with him is guilty temptation personified.

It is like a geologist carrying on an argument with a "4000 year old Earth" advocate. After a while the geologist would simply desist.
 

""In order to respect the president's inherent constitutional authority to manage a military campaign . . . (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority," --the Working Group Report and neither DOD or DOJ are given authority to prosecute interrogators acting "pursuant to an exercise of the president's constitutional power."

The same Report makes the astounding defense of necessity and self-defense: if a detainee is killed by his custodians either in interrogation or some other circumstance the responsible official would not be subject to prosecution if he acted in "good faith" and attempted to save lives.

"Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law," "In particular, the necessity defense can justify the intentional killing of one person . . . so long as the harm avoided is greater."

This argument is also used to water down the "shock the conscience" standard...torture done in the name of national survival does not shock the conscience...

This is what passed for legal reasoning in the Bush OLC.
 

["Bart"]: The reason I do not reject waterboarding out of hand is that the act is brief, without pain and appears to be extremely effective in gaining actionable intelligence when everything else fails.

[mattski]: Granted, there is quality of beating a dead horse to tangling with Bart, but...

Do you have any evidence for this claim? Or are you in Justice Scalia's camp, and your evidence for the efficacy of torture comes from watching Jack Bauer on the telly?


"Bart" just makes sh*te up to serve his ideological/partisan ends of supporting the maladministration come Hell or high water.

We had the documented example of al-Libi being in part responsible for the horrors and sanguinity of the Iraq war. "Bart" ignores this fiasco and sings the same tune endlessly about the wonders and efficacy of torture.

And as we see here, the real justification that "Bart" puts forth is that it's perfectly OK to torture real Terra-ists (and whoops, sorry, but no relief or even apology to the likes of Arar and el-Masri). "Bart" explicitly puts forth a utilitarian exception to the anti-torture laws, one that the treaties and international law specifically deny (and the U.S., in its "reservations" did not make).

But to top it off, let me once again simply post this link once again, one that all should read and think about. Here's the most alarming part:

(Staff Judge Advocate at Guantanamo Diane) Beaver told me she arrived in Guantánamo in June 2002. In September that year there was a series of brainstorming meetings, some of which were led by Beaver, to gather possible new interrogation techniques. Ideas came from all over the place, she said. Discussion was wide-ranging [...]

Jack Bauer had many friends at Guantánamo Bay, Beaver said, "he gave people lots of ideas." She believed the series contributed to an environment in which those at Guantánamo were encouraged to see themselves as being on the frontline - and to go further than they otherwise might [...]

The younger men would get particularly agitated, excited even: "You could almost see their dicks getting hard as they got new ideas." A wan smile crossed Beaver's face. "And I said to myself, you know what, I don't have a dick to get hard. I can stay detached."


It may well be that the fondness of "Bart" for torture, neither explicitly nor implicitly acknowleged but nonetheless real, lies more in the dynamic described therein....

Cheers,
 

Arne, thanks for the Alternet link. Brig. Gen. Irvine from that article:

The [Wall St.] Journal assumes that only the worst of the worst will be subjected to torture when it comes to ticking time bombs. Not only is that assumption unfounded, based upon the widespread abuses in Iraq, it was tried and abandoned by the Israelis. Because it is impossible to confirm with advance certainty what any suspect actually knows, ticking bomb torture can be justified in virtually every interrogation.

This is an important point. The "ticking bomb scenario" is a paranoid fantasy which is virtually impossible to avoid once a nation starts down the path of torture.

Guard 1: Hey, this guy could know something.

Guard 2: Yeah, I guess he could, couldn't he?

Guard 1: Well, shit, he could know something big couldn't he?

Guard 2: Looks like a guilty mother-fucker doesn't he?

Guard 1: We better find out what he knows.

I have one other comment relating to Bart's previously stated indifference to what the Muslim world thinks of the United States. Bart said, "war is not a popularity contest."

First, a necessary condition of civilized society is "a decent respect for the opinions of mankind." I'm sure I saw that written somewhere...

Second, in fact, war is a popularity contest. Popularity is the reason we lost Vietnam. Popularity is the reason there was no post WWII guerrilla insurgency against us. War serves political ends in all cases. And politics is all about popularity, even, paradoxically enough, authoritarian politics. Even tyrants need a minimum level of popular approval to survive, and they put a great deal of effort into maintaining that approval, through means fair and foul to be sure.
 

I suspect that -- despite the fact that maladministration apologists and torture-enablers would dearly like to insist that nothing wrong was done -- the courts will have no choice but to get involved and render a final opinion so that this is no longer "an open question", at least legally.

As we see, the people that the United States has the greatest interest in trying and convicting (ignoring ol' "Dead or Alive" bin Laden, who is still free), may -- thanks to the maladministration's ... ummm, "zealousness" -- have the best case to bring WRT the use of torture. Between destruction of videotapes in apparent contradiction of judicial orders, and the latest destruction of evidence on top of the "confessions" extracted through torture, the six high-profile Guantánamo defendants may well have the best argument that no fair trial is possible and that gummint misconduct and deviations from the internationally accepted minimal norms of due process have irretrievably poisoned the proceedings such that no fair trial is possible any longer.

The gummint was/is seeking to immunise its own conduct through strained parsings of the code that go far beyond common sense (and literally making up "new law" ex post facto, as in the MCA), but in doing so, they're just showing how badly they've rigged the process (and that's even before we look at the timing and conduct of the trials as a political, as opposed to a judicial, manoeuvre).

At some point, this is something that any honest court has to take notice of, even if stocked with RWers.

Cheers,
 

Thanks for the post and links Arne. You hit it right on the head.
Best,
Ben
 

Ben/Arne:

Even if the law was the way you would like it to be, exactly who is going to prosecute the interrogators?

DOJ expressly and Congress implicitly during briefings signed off on the program before CIA proceeded.
 

Bart,

First off, let's get something straight: I'm not about to "agree to disagree" with you on this stuff. There are some particulars where that might be reasonable, but there are many others where it clearly isn't.

If someone claims that 1 + 1 = 3, they aren't merely disagreeing with you. The exact value of Pi is indeterminate, not ambigous, yet we routinely use it to do things like design airplanes where even a small mistake might result in a smoking hole in the ground and a lot of dead bodies. It's a question of how much precision is required, and a lot of the stuff you and the administration's other apologists say is simply wrong. Like for example, you say...

"My position is that it is impossible to set such a line under the current treaty and statutory language."

But that's just silly -- what's "impossible about it"?

Every treaty and statute was written by human beings, all of them could have been written differently, and each is subject to revision. They are what they are, and each is exactly what we have made it. Are you trying to tell me that you think it's absolutely impossible to make an intelligible statement in English, or to make reasonable decisions about matters sometimes which exhibit ambiguities?

Surely not: such a view would not only negate all law, but any and all discussion of anything. So what, then, are you saying?

The only reasonable premise I can imagine for your claim is that you think the current treaties and laws conflict with each other, in which case the problem is to resolve the conflict -- a task which courts undertake routinely, resolving ambiguities by various methods as they arise. There's nothing inherently impossible about any of that. So what are you really saying?

Apparently, only that it's impossible for you to suppose you might be wrong, admit a mistake, or acknowlege any fact that contradicts your prejudices. Geneva etc is beside the point here -- waterboarding is a federal crime under multiple statutes. For example:

* 10 USC § 893 (cruelty and maltreatment)

"Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct."

* 10 USC § 928 (assault)

(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.

(b) Any person subject to this chapter who--

(1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or

(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon;

is guilty of aggravated assault and shall be punished as a court-martial may direct.

Where's the ambiguity or impossibility Bart?
 

"Bart" DeDicta:

Even if the law was the way you would like it to be, exactly who is going to prosecute the interrogators?

As you probably know, Congress is calling for a special prosecutor. That would be fine with me, seeing as lapdog/enabler Mukasey is sitting with his thumb up his ....

Ftzgerald seems to be a pretty straight-up guy. Maybe he could do this one as well....

And just in case you're worried, "Bart", any criminal prosecutions would go before a judge and to a jury. No one would be "presumed guilty" (as seems to be the wont of the maladministration). I think they can be relied upon to come to the right -- and fair -- result....

Cheers,
 

Charles Gittings, to "Bart"]: Are you trying to tell me that you think it's absolutely impossible to make an intelligible statement in English, ...

No. He's trying to show you.

But it happens to be true for the maladministration's antics.

Cheers,
 

Bart said: "DOJ expressly and Congress implicitly during briefings signed off on the program before CIA proceeded."

Are we sure about that sequence of events?

I thought there was some indication that the 2002-2003 memoranda were post-facto legal cover for activities that had occurred at Bagram and elsewhere before Congress ever had an inkling of what was going on.
 

Michael:

["Bart"]: "DOJ expressly and Congress implicitly during briefings signed off on the program before CIA proceeded."

Are we sure about that sequence of events?

I thought there was some indication that the 2002-2003 memoranda were post-facto legal cover for activities that had occurred at Bagram and elsewhere before Congress ever had an inkling of what was going on.


Not to mention, it's explicitly stated in the Constitution what Congress may "sign[] off on", and how.

"Bart" continues to pretend that supposed Congressional "oversight": consisting of some small minority being (selectively) briefed on executive actions constitutes some kind of legal affirmation. And out of the other side of his mouth insists that Congress has no "oversight" powers that need to be respected.....

Cheers,
 

Neither Congress or DOJ have any authority to authorize committing a crime. I've read Mr. Mukasey's arguments, and all they prove is his own complicity.
 

“As you probably know, Congress is calling for a special prosecutor.”

I didn’t know that. Who in Congress is calling for a special prosecutor? I am aware that there have been requests for a special prosecutor to investigate the destruction of the CIA tapes, but not to investigate whether waterboarding itself was illegal.

Of course, if the question of waterboarding’s legality were as clear as 1 plus 1 equals two, one would expect that Congress would have long since demanded a special prosecutor. The Senate would not have confirmed an Attorney General who was unable to say that waterboarding was torture. Impeachment proceedings would be underway. Democratic candidates for President would be promising to prosecute the torturers if the Bush administration does not.

The fact that none of these things have happened indicate to me that the legal/political system, as a whole, does not view the matter as open and shut. You may say, as you undoubtedly will, that this is because of cowardice, corruption, stupidity and self-interest among the political classes. Ok, fine. There are lots of things that are legal only because the elected officials and appointees who make up the legislative, executive and judicial branches choose to accept them. Most of the federal government would be illegal otherwise.

Mark Field calls this “nihilism.” I don’t see why simply observing reality constitutes “nihilism.”

Based on what I know, which includes some persuasive arguments made here (interspersed among the invective and hysterical overstatement), my view is that waterboarding is illegal. But that is my legal opinion. I am much more confident in my legal opinion (based as it is on considerably more research and expertise) that it would be unconstitutional to give the District of Columbia a seat in the House of Representatives, but I recognize that distinguished lawyers dispute that opinion. I happen to think that the issue is as close to a slam dunk as a legal issue can be, but it is still a legal issue, not a factual issue, and will be decided by the people empowered to decide it, not by me.
 

the letter requesting a SP can be found at [URL]http://media.washingtonpost.com/wp-srv/politics/documents/mukasey_letter_060708.pdf [/URL]
 

Jkat- thanks. I will just make a few observations about this letter. First, it is rather ambiguous with respect to the role of waterboarding in the proposed investigation. The letter begins by describing a “pattern of abuse” against detainees, including sexual abuse, drugging and outright killing. Waterboarding is not mentioned. The letter then cites the “additional information” that has surfaced in “the last month,” ie, the fact that high ranking Administration officials, including the President, were aware of and approved “enhanced interrogation techniques including waterboarding.”

The letter does not explicitly state that waterboarding is torture or that it violates the law. The reader might reasonably draw the conclusion that the signatories believe that waterboarding might violate the law, but one would be hard-pressed to explain why, given that the use of waterboarding has been known for several years, the members waited until now to call for a special prosecutor. Why would they have called six months ago for a special prosecutor to investigate the destruction of the CIA tapes, but not to investigate the waterboarding that the tapes apparently showed?

One should also take note of who signed and who didn’t sign the letter. Only about a quarter of the Democratic Caucus signed. Only two members (Conyers and Nadler) signed in a committee or subcommittee capacity. The chairman of HPSCI did not sign. Neither did the chair or vice chair of the HPSCI subcommittee with jurisdiction over this activity. Neither did the chairmen of the Armed Services, Homeland Security, or Appropriations Committees (or the Defense Appropriations Subcommittee). Although a bare majority of the Democratic members of the Judiciary Committee signed, it is notable that Howard Berman, the Vice Chair of the Judiciary Committee and the Chairman of the Foreign Affairs Committee, did not.

The two Democrats who were briefed on the waterboarding (Pelosi and Harman) did not sign. The top Democratic leadership did not sign. I did not see any Blue Dogs among the signatories. Needless to say, there were no Republicans.

Based on this letter, one can reasonably conclude that only a small minority of the House believes that there should even be an investigation to determine if the waterboarding of detainees violated the law.
 

MLS:

he reader might reasonably draw the conclusion that the signatories believe that waterboarding might violate the law, but one would be hard-pressed to explain why, given that the use of waterboarding has been known for several years, the members waited until now to call for a special prosecutor.

Because the maladministration has said that it won't act on its own.

Mukasey knows the Nixon Defence.

Now that this is obvious, just as in the Plame case, it's time to get a real prosecutor on the job, and not just a Dubya consigliere.

Cheers,
 

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