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Jonathan Rauch on "The Right Approach To Rough Treatment":

As always with Rauch's work, this item is much worth reading even if you disagree with it.

msmith (mail):
...First, torture should be legally off-limits, period, regardless of circumstances. Hardly anyone says otherwise....

Period? Mr. Rauch might want to take a closer look at the greatly expanded provision for retroactive legalization of conduct September 11, 2001 to December 30, 2005 in H.R. 6166, Military Commissions Act, currently being debated before passage.

Almost five years and the recent Bush-McCain-Warner kabuki dance and morality play just to end up with that joke?

Why didn't they just save us all the trouble and themselves the effort?
9.27.2006 4:34pm
A.S.:
Thanks for the pointer. That was about as level-headed an article on the subject as I've seen.
9.27.2006 4:41pm
Anderson (mail) (www):
Perhaps someone will explain *why* Rauch's column is "worth reading"?

To claim, as some people do, that coercive interrogation doesn't work contradicts common sense, as well as the Bush administration's unqualified insistence that the CIA's "alternative procedures" have already thwarted terrorist attacks and saved lives.

Okay: (1) The Bush administration's credibility is not only a joke in general, but on this particular point has been quite effectively challenged by Ron Suskind and others.

(2) "Common sense"? How about what professional interrogators think? How about the Army's intel chief, who said straight-out that coercion is a bad tactic?

Does coercion work sometimes? Sure it does. If I beat you up, you may tell me what I want to know. But you may also tell me whatever you think I want to know, and quite obviously, there's no reason to think that I couldn't have gotten the info from you by standard tactics.

For crying out loud, people--torture got people to confess they were witches. Does that not tell you something?

Israel tried the same experiment with "alternative" methods that Rauch describes, and they had to call it off, because once torture becomes acceptable in emergencies, the definition of "emergency" becomes very slippery, and the inhibitions of the torturers are eroded such that torture spreads. Mark Bowden, who was initially sympathetic to legalizing such methods, now concedes they should be illegal, with the "ticking bomb" torturer free to seek the mercy of the jury.

Color me unimpressed with Rauch's column.
9.27.2006 4:47pm
bluecollarguy:
The "coercion" Rauch describes has been experienced by every young fellow who ever walked through the gates at an Army or Marine Corps basic training facility, with the possible exception of waterboarding though throwing some recruits in the deep end of the training pool might qualify.
9.27.2006 4:57pm
Commenterlein (mail):
What Anderson said.

Rauch's "common sense" amounts to not understanding that increasing the amount of signal at the expense of worsening the signal-to-noise ratio can be a bad strategy. Add to that the fact that all the people who are actual specialists in this area tells us that it is indeed a bad strategy, and I think we have a pretty good case that Rauch is both clueless and wrong.
9.27.2006 5:02pm
Dean Esmay (www):
It's foolish to believe that coercion automatically produces worthless results. Most sensible people, and I think most psychologists, will agree that sometimes coercion, when handled properly and not in a manner that most people would consider real "torture," can work and will not automatically just create more nonsense.

Rauch is right on the money here. His gratuitous swipes at the Bush administration notwithstanding.
9.27.2006 5:05pm
Anderson (mail) (www):
The "coercion" Rauch describes has been experienced by every young fellow who ever walked through the gates at an Army or Marine Corps basic training facility, with the possible exception of waterboarding though throwing some recruits in the deep end of the training pool might qualify.

Right. The NKVD was just a bunch of drill sergeants.

In a VC thread a while back, I found lots of stuff on sleep deprivation and forced standing. It's torture, people.

Let em repeat just one quote:
the second major breakthrough that the CIA had came here in New York City at Cornell University Medical Center, where two eminent neurologists under contract from the CIA studied Soviet KGB torture techniques, and they found that the most effective KGB technique was self-inflicted pain. You simply make somebody stand for a day or two. And as they stand -- OK, you're not beating them, they have no resentment -- you tell them, "You're doing this to yourself. Cooperate with us, and you can sit down." And so, as they stand, what happens is the fluids flow down to the legs, the legs swell, lesions form, they erupt, they separate, hallucinations start, the kidneys shut down."
Just standing, right? No big deal!

Forced standing for 40 hours is thought to've been practiced under this administration, and endorsed by the draft legislation now before Congress. Within 24 hours, according to the CIA researchers just cited, the ankles &feet swell to double normal size.
9.27.2006 5:08pm
Anderson (mail) (www):
Dean Esmay? Not the Dean Esmay?
9.27.2006 5:10pm
Houston Lawyer:
With the exception of waterboarding, which reportedly won't be allowed, I'd prefer to be subject to this type of interrogation than be incarcerated with with your ordinary prison population in any US prison system.
9.27.2006 5:12pm
Malvolio:
Anderson,

Are you under the impression I couldn't, for example, torture your ATM PIN out of you. Let's say I had you bound and gagged in front of the machine and I had a pair of heavy snippers. "I will ask you 21 times for your PIN, starting with your left pinky..." I'm pretty sure I would have your account emptied by 20. People lie to torturers only when their lies cannot be checked.

"You hear that Mr. Anderson? That is the sound of inevitability."
9.27.2006 5:13pm
Anderson (mail) (www):
I'd prefer to be subject to this type of interrogation than be incarcerated with with your ordinary prison population in any US prison system.

Well, your odds of getting raped in a U.S. prison are a lot higher than with the CIA. As far as we know.

Now, we send you to Syria or Egypt, &all bets are off.
9.27.2006 5:14pm
Mark Field (mail):
Who cares if torture "works"? Slavery "worked" at some level; genocide "works" as population control. Torture is not right or wrong based on whether it works, it's wrong because it dehumanizes the victim (and, for that matter, the perpetrator). Rauch is just adding to the debasement of morals and language.
9.27.2006 5:15pm
Owen Hutchins (mail):
Checked immediately. And what if they don't actually have the information the torturer thinks they do? How many fingers will it take to determine that?
9.27.2006 5:16pm
steve k:
Like many others, Anderson and Commenterlein are evading the debate. Even they understand that under limited circumstances tough interrogation can have useful results. It's conceivable then (and I'd say quite plausible) that we can at least come up with a successful system where such methods are used selectively. So we should be asking outselves what such a system would look like and what techniques are acceptable.
9.27.2006 5:17pm
Anderson (mail) (www):
Are you under the impression I couldn't, for example, torture your ATM PIN out of you.

Allow me to quote myself from upthread:
Does coercion work sometimes? Sure it does. If I beat you up, you may tell me what I want to know. But you may also tell me whatever you think I want to know, and quite obviously, there's no reason to think that I couldn't have gotten the info from you by standard tactics.
Does that answer your question?

As for your bit about lies to torturers, one needn't lie; one could just refuse to talk. And the really interesting information isn't usually the kind of thing we can check right away.

See Suskind's book on how the torturers of our first Qaeda officer got bogus info.

As Matt Yglesias has pointed out, torture mainly works when you know already what answers you want, which does a lot to explain why Dick "Cherrypicker" Cheney would think it's a wonderful idea.
9.27.2006 5:18pm
Richard Aubrey (mail):
Torture, as somebody said, is you and your wife watching your kids raped to death, after which you watch your wife repeatedly dipped into boiling water, and after she's dead, you have a four-foot spike hammered up your anus.

Hauling in stuff that's done in Basic, or SERE, or fraternity hazing, or pre-season football practice to punch up the numbers will merely trivialize the real thing, and cause people who would otherwise be concerned to dismiss the whole thing.

That it works is pretty clear and ways to avoid the say-anything issue are also pretty clear. That's not a stopper.

The question is that, given that coercive interrogation works, what is the price of foregoing it entirely and are we willing to undertake it? IMO, that needs to be part of the debate for the debate to be honest and complete.

That few of that anti-torture folks seem to be interested in that question is....interesting.

I think the insistence in the military that torture doesn't work is designed to take the load of deciding off the young guys in the line.
9.27.2006 5:18pm
Anderson (mail) (www):
Steve K. - Even they understand that under limited circumstances tough interrogation can have useful results.

Um, no. You can get stuff you could've gotten without torture, but you also get really unreliable stuff.

Richard Aubrey - The question is that, given that coercive interrogation works

That's quite a "given." And I just love how you glibly dismiss the Army Interrogation Manual, and with it the work of professional interrogators, who unlike us know personally what they're talking about.

"The question is," given the professional consensus that torture is unreliable and that standard interrogation tactics are superior, why are some people so devoted to defending torture?

---Leaving aside Mark Field's comment, since torture advocates usually dismiss conscience and morality as girly-stuff. You gotta be tough, right? That worked so well for the Nazis, didn't it?
9.27.2006 5:24pm
bluecollarguy:
Anderson,

It is evident that you never experienced basic training. Here's the idea employed by the Army and Marine Corps. Tear down the boy and make the man. You are sleep deprived, food deprived, physically exhausted and then you wake up and do it all over the next day. Coercion abounds but it is not the only coin of that realm. A dash of compassion is sprinkled in as well. In the end it works.
9.27.2006 5:25pm
Anderson (mail) (www):
Blue Collar, if you don't already understand the difference between basic training undergone by a U.S. citizen, and torture in a secret CIA prison, then I am certainly not the one to help you understand it. I wonder who is.
9.27.2006 5:26pm
Francis (mail):
Any program of "alternate measures" or "coercive interrogation" will inevitably cause pain and suffering to the innocent. See, eg, Maher Arar.

Given the amount of due process we give to people when we're only contemplating confining them for a period of time, I'm more than a little alarmed at the willingess of people to surrender to the executive the power to use force against people who in fact have nothing useful to say.

The administration's credibility on this issue is zero. These are the people, remember, who said that they KNEW where the WMDs were.

Apparently KSM confessed under torture that there was a plot to bomb a building in Los Angeles. A prosecutor who blogs under the name Patterico is all excited about the plot being stopped. (It's a little alarming [but not terribly surprising] just how quickly a prosecutor is willing to abandon the rule of law.) But time and time again over the last five years, we have seen that plots against the US are far more aspirational than operational. How do we know that any of the claimed successes are nothing more than a circle of confessions to utterly unrealistic plans obtained under torture?
9.27.2006 5:35pm
BGates (mail) (www):
I'd appreciate seeing some bright lines from the people opposed to all the interrogation techniques outlined above, and perhaps to other techniques not mentioned. Could someone answer the following:
1) Detainees should not be required to stand for more than ___ minutes.
2) All questioning should take place in a room heated to between ___ and ___ F.
3) (T or F) Interrogation of a Muslim detainee by someone of the opposite sex is degrading or humiliating and should be avoided.
4) (T or F) Interrogation of a Muslim detainee by a non-Muslim is degrading or humiliating and should be avoided.
5) (T or F) Interrogation of a Muslim detainee that overlaps with the 5x daily prayer, Friday mosque service, or other religious observances is degrading or humiliating and should be avoided.
6) During interrogation a detainee should be subjected to sounds no louder than ___ decibels.
7) No detainee shall be kept awake longer than ___ hours.
8) 'Standard tactics' that work as well or better than coercive techniques in terms of quality and volume of information obtained and time required to obtain information are as follows: _____
9.27.2006 5:37pm
cfw (mail):
Anderson has it right.

Having been through Army training for parachutists, and worked with lots of Rangers, it does not make sense to say putting folks through that sort of training (volunteers) equals torture.

How about we go back to the golden rule - treat our prisoners as we would want them to treat our troops or citizens that get detained in Pakistan, etc.

If mistreatment occurs, the Law of War allows reprisals against those responsible (military or military (uniniformed) targets).

We have precedents and authorities we can rely on - the suggestion that we write on a blank slate makes no sense.

Does this mean we must tolerate risk to live as decent human beings? Sure does, but that is life. None of us will get out of it alive, so let's live with ethics that will make us respected by future generations.
9.27.2006 5:39pm
Richard Aubrey (mail):
Anderson. Yes, it worked for the Nazis. They rolled up a good many resistance networks through torture.

The Army says no--publicly--and the CIA says yes.

To convince people that torture never works would require convincing THEM that THEY would never, under any circumstances, break.

The say-anything problem is forestalled by knowing some things from other sources and convincing the detainee that you know a good deal.

Your response is interesting. I make observations about coercive techniques and you imply I favor the idea. You need to be less obvious.

The worst torture is different from boot camp, which nobody denies. But the point is that trying to increase the clout of your position by hauling in stuff that is equivalent to basic or survival school trivializes the issue. If you had a case, you wouldn't have to exaggerate to make it. Since you do, you don't.

Torture works, which we know since it has worked. Indeed, there was an account of the Allies planting a false story on the Germans by misleading some resistance guys and leaking their position to the Germans. It wouldn't have been worth the effort unless the Allies thought the guys would eventually break.

So, unless you think you can convince everybody you talk to, in their heart of hearts, that they'd never break, no matter what, you lose the "it works" argument.

And we get back to the question of what is the price of foregoing it and do we want to undertake it?
9.27.2006 5:41pm
Anderson (mail) (www):
BGates, the "bright line" is humane treatment under Common Article 3. Read up on what professional interrogators do. They build relationships, treat the prisoners as people, and go from there. Coercion of any kind ruins this process.

The Atlantic had an article on the subject a while back, though I haven't a subscriber-free link. I will provide this link to an account of the renowned Luftwaffe interrogator whose fearsome method was ... conversation.
9.27.2006 5:44pm
strategichamlet (mail):
bluecollarguy - I know Army recruiting is below quotas, but we can't be so desperate that we need to make terrorists into soldiers.

In all seriousness I don't understand the arguement that simultaineously these interrogation methods aren't all that bad (fraterity hazing, etc.) and that they work. It seems to me it's either one or the other (or maybe neither). These terrorists aren't a bunch of freshmen pledges and aren't likely to be broke down by frat level hazing.
9.27.2006 5:45pm
Anderson (mail) (www):
Mr. Aubrey keeps changing the subject. "Torture works" isn't the point--we've conceded that it "works" to an extent. Professional interrogators say it's less reliable than their preferred methods. Fortunately, we at the VC, like Jonathan Rauch, are in a position to reject their pitiful expertise.

As for the Nazis, is anyone seriously suggesting they resorted to torture only when all other methods had failed? Since when are the NAZIS our role models?
9.27.2006 5:48pm
Anderson (mail) (www):
don't understand the arguement that simultaineously these interrogation methods aren't all that bad (fraterity hazing, etc.) and that they work.

Yeah, that's always been a puzzle to me as well. And I have to assume that "they work" isn't the side of the argument that torture's advocates are being deliberately disingenuous about. So ... ?
9.27.2006 5:49pm
Mark Field (mail):

I'd appreciate seeing some bright lines from the people opposed to all the interrogation techniques outlined above, and perhaps to other techniques not mentioned.


No problem. We'll answer that question as soon as you define every single thing that might be considered "cruel and unusual punishment", plus every single aspect of "due process", etc.

Since when, on a right wing blog (I can't dignify it with the name "libertarian"), is it necessary to spell out every single circumstance which might constitute a crime? I can't wait for Public Defenders to apply the theories advanced here to common law crimes. I'm sure the courts would be receptive....


And we get back to the question of what is the price of foregoing it and do we want to undertake it?


As I said above, this is the wrong question. If someone asked the same question of slavery or genocide, we'd (rightly) consider them ... well, I'll be polite and say we'd probably nod, smile and walk away.
9.27.2006 5:55pm
bluecollarguy:
Anderson,

You have taken issue with Rauch's article. That is what we are discussing.

Your claim is twofold.

The first is that the techniques described by Rauch are "torture". I pointed out that the same techniques are part of every recruits basic training.

The second is that the efficacy of coercion is dubious. You don't have the empirical data to make such a claim however Congress does. They should have enough data to compare techniques when they make their decision on the law.

I'll have to infer that if coercion is permitted then coercion is effective. What you infer is, of course, up to you.
9.27.2006 5:56pm
Anderson (mail) (www):
The first is that the techniques described by Rauch are "torture". I pointed out that the same techniques are part of every recruits basic training.

You are incorrect. Forced standing for 40 hours is not "part of every recruit's basic training."

The second is that the efficacy of coercion is dubious. You don't have the empirical data to make such a claim however Congress does.

Do they?
Rick Klein has a story in today's Boston Globe, tellingly titled "Congress in Dark on Terror Program," that notes that almost no members of Congress have the foggiest idea what is actually covered by the new "anti-terror" legislation being rammed through the Congress as part of the desperate effort by the Bush Administration to limit Republican losses in the forthcoming elections. "'I don't know what the CIA has been doing, nor should I know,' said Senator Jeff Sessions, an Alabama Republican." This is par for the course.
Now, who do you think *would* have the "empirical evidence"? Here's my guess: the authors of the Army Interrogation Manual. And just possibly, the Army's chief of intel.

I may say that I have been surprised, throughout the torture debate, by the utter poverty of the pro-torture arguments. I am not someone who feels he's "always right" on most issues; as a philosophy major turned lawyer, I can see 3 sides to everything, just about. But this whole torture thing has been an exception.
9.27.2006 6:32pm
A.C.:
Someone over at National Review (was it Jonah Goldberg?) also had an interesting article on the subject. His argument was that it's often necessary to kill people in wars, and that there is a robust debate about how and under what conditions that can be done. This debate is a good thing. The interrogation issue about doing nasty things to people that fall short of killing them. If we can debate the question of killing honestly, then we should also be able to debate the question of doing something less than killing.

The main complication I see is that interrogation techniques are on a continuum, while killing someone is an all-or-nothing proposition. That means there has to be a debate on "how and under what conditions" for a lot of different things, not just one technique. Some of them will probably turn out to be so dreadful that the answer is "never and under no conditions," and indeed I haven't heard anyone in the real world arguing in favor of amputating fingers or anything else. And some interrogation techniques will be so accepted that there will be no controversy over them. The trouble is the ones in the middle -- are there some that should be off limits in one set of circumstances but permitted in another? If so, who enforces the rules? Or is this sort of thing too complicated to deal with, so that a given technique must always be either allowed or prohibited?

While we're at it, does anyone else find it odd that we are debating CIA interrogation techniques at all? I always assumed the CIA knocked people around back in the days of American innocence. Small-town cops did, so why WOULDN'T the CIA? But we seem to care a lot more now, in part (I imagine) because small-town cops can't get away with it.
9.27.2006 6:41pm
Anderson (mail) (www):
A.C., I think that the discussion you're looking for was held back in the late 1940s, and codified in the Geneva Conventions. See also the War Crimes Act.
9.27.2006 6:45pm
strategichamlet (mail):
Out of curiosity, in the forced standing method, what do they do to the detainee if he sits down?
9.27.2006 6:48pm
Anderson (mail) (www):
Out of curiosity, in the forced standing method, what do they do to the detainee if he sits down?

I'm sorry, that's classified.

(No, really, I don't know. But I doubt it's "oh well, he's figured us out, time for the next technique." Recall the "statue of liberty" Abu Ghraib photo -- that guy was told the wires on him would electrocute him if he sat down.)
9.27.2006 6:51pm
BGates (mail) (www):
Anderson, I'm really trying to understand what you would consider non-coercive. I don't mean, as Mr. Fields seems to think, to establish some small collection of non-permitted techniques and say beyond that anything goes. Quite the opposite. I'd like to establish which things can be done, and say beyond that everything stops.

How about this: every detainee is informed (at the start of every interrogation session, with 15 minute reminders) that at any time he may say, "This questioning is making me uncomfortable, and I want to return to my room for the next 12 hours."

I'm not sure where you stand on the use of conversation as an interrogation technique, since you were outraged at the suggestion of using NAZIS as role models four minutes after you suggested using a Luftwaffe officer for that purpose....
9.27.2006 6:52pm
Anderson (mail) (www):
Anderson, I'm really trying to understand what you would consider non-coercive.

Um, the techniques in the Army Interrogation Manual?

since you were outraged at the suggestion of using NAZIS as role models four minutes after you suggested using a Luftwaffe officer for that purpose....

I didn't suggest using the Luftwaffe fellow as a "role model," tho the link shows that the U.S. military was very interested in learning from him after the war. But I daresay most readers can discern what is meant by "Nazis as role models." If other commenters are confused, I will explain about Nazism ... but somehow, I don't think that will prove necessary.
9.27.2006 6:57pm
Houston Lawyer:
Under the Geneva Convention, aren't we entitled to summarily execute the unlawful combatants we have captured? I'm still waiting for these executions to start.

Would serving these guys pork products for every meal constitute torture as well?
9.27.2006 6:58pm
Anderson (mail) (www):
Under the Geneva Convention, aren't we entitled to summarily execute the unlawful combatants we have captured? I'm still waiting for these executions to start.

Houston, I think you've got Texas law confused with Geneva law ... hey, wait a minute, what state is Bush from? All is now clear!
9.27.2006 7:00pm
Vovan:
Anderson,

You are kicking ass and taking names

more fuel to the fire

почитайте, Tоварищ Волохъ
9.27.2006 7:14pm
Shahid Alam (mail):
It's interesting. A lot of folks seem to want to talk only about "torture". I don't mean what's traditionally been understood to be included under the rubric of torture, but torture as a previously contentless word now expanded to mean anything and everything they find disagreeable. It's similar to those who call their opponents fascists or Nazis simple because they disagree with them.

I understand it's easier that way. No need to deal with the complexities of the world we find ourselves in, or difficult balances of right and wrong.

Unfortunately, it doesn't make for a useful discussion unless everyone already agrees.
9.27.2006 7:16pm
Anderson (mail) (www):
That's a GREAT article, Vovan. Everyone should read it.

This graf isn't even one of the best, but it relates directly to the "hey, that's not torture" arguers:

Now it appears that sleep deprivation is "only" CID and used on Guantanamo Bay captives. Well, congratulations, comrades! It was exactly this method that the NKVD used to produce those spectacular confessions in Stalin's "show trials" of the 1930s. The henchmen called it "conveyer," when a prisoner was interrogated nonstop for a week or 10 days without a wink of sleep. At the end, the victim would sign any confession without even understanding what he had signed.

Yeah, I bet we get some REAL useful intel that way.
9.27.2006 7:24pm
Commenterlein (mail):
Even if we were to grant that torture is useful in gathering information (which is an incorrect assumption, but let's make it) from suspects, it pretty much by definition works through inflicting a degree of physical or mental pain on its victim that the victim is unable to take it and talks. So let's say this once more - inflicting so much pain that the victim cannot take it anymore. Anything less will simply not do the job.

I have trouble understanding how folks here can argue with a straight face that the abusive methods that have been employed by us in the WoT are on the one hand really useful in getting information out of people, but on the other hand don't amount to much more than what's done in basic training? Isn't it obvious that this must be nonsense?

Let me put it real simple: If it's not that bad, it won't get people to talk, and if its bad enough to get people to talk, then it's definitely torture and we shouldn't be doing it. Unless we are ok with putting ourselves practically and morally on the same level as the Nazis and the Soviets, something I am afraid more and more Americans seem to be willing to do.
9.27.2006 7:25pm
Alaska Jack (mail):
Anderson:

Your dismissal aside, isn't Houston Lawyer quite correct? As I understand it, one of the overriding purposes of the Geneva Conventions was to protect noncombatant civilians. Throughout human history, the way militaries traditionally dealt with the problem of insurgents was to simply massacre entire populations. The GCs dealt with this (again, as I understand it) by explicitly *not* extending protection to non-uniformed soldiers.

This seems fairly self-evident to me -- non-uniformed combatants make the conscious choice to forego GC protections in exchange for the operational advantages conferred by anonymity. I'm not a law-talkin'-guy, so if I am missing something, please do not hesitate to enlighten me!

- Alaska Jack
9.27.2006 7:27pm
Commenterlein (mail):
Vovan,

Thank you for the Bukovsky article. I couldn't remember anymore where I had read it, but it's an incredibly powerful piece.
9.27.2006 7:29pm
Anderson (mail) (www):
torture as a previously contentless word now expanded to mean anything and everything they find disagreeable

Who, exactly, is calling "torture" anything they find disagreeable? Would you care to name names, provide links?

See Robert Conquest, a reliable conservative the last time I checked:
A central characteristic, seldom actually omitted from nonjudgmental accounts of Stalinism, was indeed torture. It was applied on a huge scale to produce a totally false picture of terrorism, sabotage, and espionage.

Even the ostensibly nonphysical methods used in 1936 are described by victims as both mentally and physically devastating. One man arrested briefly told me that the comparatively mild-sounding stoika, when a prisoner was kept standing against a wall for days, was hardly bearable. Torture is, one might say, a worse crime against humanity than killing.
9.27.2006 7:29pm
BGates (mail) (www):
Probably the most relevant section of the Army Interrogation Manual is this: "Article 3 of the Conventions requires that insurgent captives be humanely treated and forbids violence to life and person -- in particular murder, mutilation, cruel treatment, and torture. It further forbids commitment of outrages upon personal dignity, taking of hostages, passing of sentences, and execution without prior judgment by a regularly constituted court."
-Murder and mutilation are clear enough, now if someone could please define 'outrages upon personal dignity'. Being subject to the presence of a non-Muslim woman with an uncovered head? Living in a world where Denzel Washington hasn't won an Oscar?

If an Army interrogator testifies in court that their interrogation, however it was handled, did not conflict with the Manual, shall we take their word as final? If not, what other standard will be used?
9.27.2006 7:31pm
Caliban Darklock (www):
I'm fond of a particular tactic. You just habitually feed your prisoners a meagre and bland diet, essentially bread and water. When you want to interrogate one of them, you take him to another room and sit him at the table, where there is an empty bowl and a clean spoon.

At the opposite end of the room, a rich and fragrant stew is merrily simmering away in a pot.

I've been told that you can barely get the question out of your mouth before the prisoner frantically volunteers everything his memory can provide. Everything. If he even THINKS you might want to know, he'll tell you.

And yet, you've never offered him anything. Nobody said he could have the stew if he talked. Nobody said anything. You simply allowed him to manufacture the scenario in his mind. Once you have the information you want, you can simply return him to his cell - or you can reward him with some stew. It's up to the interrogator.

A similar tactic might be particularly effective with Muslim detainees: provide them a daily ration of bread and water, along with a thick juicy ham steak. Their faith demands they ignore the steak and eat only the bread and water. Since they draw much of their strength from this faith, their ability to refuse the ham demonstrates where they are mentally. Once a detainee gives in and eats the ham, he's probably distressed and vulnerable... and he's done it to himself.
9.27.2006 7:32pm
srp (mail):
There is a difference of opinion between the Army and the CIA over the effectiveness of coercive interrogation methods. Anderson wants to favor the Army's view, which is the view I wish were correct as well.

I don't think it is correct. If you have partial information and the subject doesn't know how much you have, and/or you can mix coercion with compassion, you can create very strong incentives to cooperate. There's a reason why hard cop/soft cop is effective. Logically, the subject's uncertainty about what is already known is a critical factor in making this sort of interrogation work, because it prevents him from knowing which lies are safe and which ones aren't.

The purely friendly approach may work quite well in many cases, possibly a majority of the time, but it 1) will take longer, 2) reduces the magnitude of the incentive to cooperate, and 3) will run into problems with hard-core fanatics. That may still make the purely friendly approach optimal for the vast majority of cases, given the costs to the interrogator, the subject, and the country of playing rough. But I doubt that it will be optimal in every case, and in some of those cases may be very sub-optimal--leading to the defeat of the US or a mass casualty attack that gets a lot of people killed.

Rauch is not being unreasonable in recognizing these points. The important contrary view was briefly referenced earlier in the thread: Don't legitimize the rough stuff officially at all and force the interrogator to gamble that the results ex post will make what he did look justified enough for dropped charges or a pardon. The advantage here is that we create no "official" gray area or systematize or legitimize practices which we do not wish to see expand over time. The disadvantage is that the professionals at the CIA are going on strike here and saying they won't do anything tough unless they get an official safe harbor. So here we are.
9.27.2006 7:39pm
Anderson (mail) (www):
Alaska Jack, that was argued round when the Hamdan decision came down. The short answer, IIRC, is that Common Article 3 is the baseline protection, and that there is no such thing as an "enemy combatant" under Geneva. You are either a prisoner of war or a civilian. The whole point is to keep there from being any "in-between" that a signatory could exploit to avoid being bound by the Conventions.

Citing WW2 practices fails to take into account that the present Geneva Conventions are postwar (1949?).

As for Houston's specific contention, soldiers out of uniform are not extended POW protections. Those aren't at issue here --- nobody of consequence is arguing that al Qaeda is entitled to those. The Taliban are a harder case -- what uniform did they ever embrace? -- but I am certainly open to the argument that they, too, were not entitled to POW protections. And I can well believe that Taliban disguised in U.S. uniforms could be shot out of hand, though I could be mistaken about that.

If you are genuinely interested, there should be a great deal on Balkinization and other blogs that will set forth the competing positions. I have educated myself a bit about torture, but cannot pretend to be a Geneva expert.
9.27.2006 7:39pm
Commenterlein (mail):
In response to Caliban's torture porn fantasy above, a quote from the Bukovsky article:

"Investigation is a subtle process, requiring patience and fine analytical ability, as well as a skill in cultivating one's sources. When torture is condoned, these rare talented people leave the service, having been outstripped by less gifted colleagues with their quick-fix methods, and the service itself degenerates into a playground for sadists. Thus, in its heyday, Joseph Stalin's notorious NKVD (the Soviet secret police) became nothing more than an army of butchers terrorizing the whole country but incapable of solving the simplest of crimes."
9.27.2006 7:40pm
BGates (mail) (www):
Finally, a bright line! If it's not that bad, it won't get people to talk, and if its bad enough to get people to talk, then it's definitely torture and we shouldn't be doing it.

Anderson, I'd ask if you agreed with this, but you might answer me - and according to this standard, I would then be guilty of torture myself.
9.27.2006 7:41pm
Anderson (mail) (www):
SRP, take a look at Suskind's book, would you? Especially since it was written in heavy reliance on CIA personnel. It's worth checking out of the library, at least.

In response to Caliban's torture porn fantasy above

Y'know, I'm prejudiced; noms de plume like "Caliban Darklock" and "Malvolio" ("evil will") suggest to me a preexisting attitude towards torture. I could be mistaken.
9.27.2006 7:45pm
Mark Field (mail):

This seems fairly self-evident to me -- non-uniformed combatants make the conscious choice to forego GC protections in exchange for the operational advantages conferred by anonymity


Even non-uniformed combatants are entitled to the protections of Common Article 3 in most relevant cases. In fact, if every country in the world signed CA3, I'm not sure there could be conflict in which those protections did NOT apply. In any case, they DO apply here (Hamdan), so HL's question is purely hypothetical. Of course, the whole point of the bill is to remove those protections....

A lot of folks seem to want to talk only about "torture". I don't mean what's traditionally been understood to be included under the rubric of torture, but torture as a previously contentless word now expanded to mean anything and everything they find disagreeable.

This is simply not true. US law already defines torture. What I am protesting is the demand for excessive precision in the definition. There will ALWAYS be broad terms used even in a criminal statute. If there weren't, we'd never be able to outlaw crimes because people are just too inventive in finding ways to avoid the express words of a statute.

It's clear that most of the CIA techniques here qualify as "torture".
9.27.2006 7:45pm
A.S.:
My goodness, it's torture reading these ridiculous posts by Anderson.

In any case, Anderson's claim that the alternative techniques, such as sleep depravation, don't work is just plain false, as the story Rauch linked shows:


Nevertheless, many interrogators privately acknowledge that coercive methods that stop short of torture have proven effective in Afghanistan and Iraq.

In Afghanistan, for instance, interrogators who questioned prisoners early in the war complained that they had little success with straightforward approaches, and only began to get meaningful information from prisoners after embracing harsher methods, including short-term deprivation of sleep.


Again, the techniques involved here are techniques short of torture, but stronger than those approved by the Army manual. As Rauch points out, it is entirely appropriate to have a hierarchy of approved techniques: with only the mildest techniques approved for use by the largest group of interrogators (the Army), medium-level techniques approved only for special situations (for use by the CIA on terrorists, under stricted enforced rules), and the harshest techniques ruled out entirely. Which is exactly what's happening.
9.27.2006 7:46pm
A.S.:
It's clear that most of the CIA techniques here qualify as "torture".

You missed a word.

It's clear that most of the CIA techniques here DON'T qualify as "torture".
9.27.2006 7:47pm
Anderson (mail) (www):
Anderson, I'd ask if you agreed with this, but you might answer me - and according to this standard, I would then be guilty of torture myself.

BGates, I've seen blog commenters whose comments it was torture to read, but yours are far from that category.

Mark Field, straighten these folks out, would you? Gotta run!
9.27.2006 7:48pm
A.S.:
take a look at Suskind's book, would you

It's funny to see anyone rely on Suskind as a source. Heck, on the O'Neill book, Suskind was debunked by his own subject.
9.27.2006 7:49pm
BGates (mail) (www):
Mark, obviously it is not clear that most of the CIA techniques amount to torture, because many people disagree that is the case. Looking up the first two definitions of crimes that occurred to me, murder and manslaughter (unlawful killing of a human being with or without malice, respectively), those definitions seem much clearer.

Anyway, how did you go from protesting the lack of libertarian spirit on this blog to warning against precision in law, lest the government be unable to lock up as many people?
9.27.2006 7:59pm
A. Zarkov (mail):
How many Middle Eastern or Asian countries don’t use torture? How about Europe and South America? Does anyone think the French wouldn’t use torture if they thought it useful? We certainly know they used it in Algeria. How about the British in Northern Ireland? Is torture un-American? We certainly used it during the Civil War, and we used it in WWII against the Japanese. Now I don’t know how well torture works, but who in officialdom is going to give us a straight answer to that question? Anything affirmative would be a career ending response. The use of torture is simply part of the human condition. Primitive people used it, often just for amusement, ancient states used it, and modern states use it. Is torture even worse than the ordinary acts of war like using machine guns, land mines, cluster bombs, flamethrowers etc?

A lot of people seem to have an extreme aversion to physical methods (except for combat in war). It’s ok to put someone in a small room for 23 hours a day for the rest of his life, but not ok to flog him for trying to kill a prison guard.
9.27.2006 8:26pm
Mark Field (mail):

Looking up the first two definitions of crimes that occurred to me, murder and manslaughter (unlawful killing of a human being with or without malice, respectively), those definitions seem much clearer.


I don't think the terms "unlawful" and "malice aforethought" are precise in any meaningful sense. The difference is that you and I are used to these terms from law practice. We have a good intuitive sense for them because we've dealt with them a lot. The truth is, though, that this intuitive sense is based on a very long history of common law jurisprudence in which the exact application of these terms has been worked out. Most people here aren't familiar with the CA3 bans, so the terms seem "vague" to them.

Let me take your murder example one step further. US law puts on the defendant the burden of proving "justification" or "excuse" as a defense to murder. Is the definition of murder too vague because it puts the defendants at risk that their conduct will not be approved after the fact?

Here's another example. The 13th Amendment abolished slavery (doh!). After it passed, Southern states enacted Black Codes which so regulated the freed slaves that they were little better off than slaves. Lyman Trumbull, who wrote the 13th A, then wrote the Civil Rights Act of 1866 to ban this mistreatment. Here's what he said in urging passage of the law:

"It is difficult, perhaps to define accurately what slavery is and what liberty is. I take it that any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment on his liberty; and is, in fact, a badge of servitude which, by the Constitution, is prohibited."

See what I mean? We think we know what "slavery" means, but it turns out not to be all that precise a term when you get down to it. At what point did the Black Codes cross the line? I can't say, and neither can anybody else. The solution is not to try to define that precise point, but to enforce the more general principle of equal protection. The same basic idea should apply to the interrogations here.


Anyway, how did you go from protesting the lack of libertarian spirit on this blog to warning against precision in law, lest the government be unable to lock up as many people?


Touche', but only up to a point. It's a balance, after all. Government does have to punish criminal conduct, and the variations of that are too great for the kind of precision we'd really like. We have to live with that. My point here is that we shouldn't apply to torture any stricter standard than we do any other crime.


Mark Field, straighten these folks out, would you?


I now feel like Canute.
9.27.2006 8:30pm
Richard Aubrey (mail):
Commenterlein and Anderson.

You could have been more subtle, but you have been obvious in your bad faith.

You claim that others have said that the techniques are no worse than fraternity hazing and that, somehow, even this "works". This is false. Nobody said that. What was said was two-fold.

One, which I have said, is that claiming relatively innocuous techniques--such as encountered in fraternity hazing--are torture is false. They are not. And doing so actually weakens your argument as soon as others give the proposition an instant's thought.

The other is feigned amazement that the less-than-torture works. Sometimes it does, and sometimes it doesn't. Anderson switched from it never works to it's a given.

From now on, any discussions with you two and certain others will be boringly explaining how you failed to hide your bad faith, again. So I won't bother.

Anyway, how about putting the question of what is the cost of foregoing harsh interrogation on the table? So an honest decision can be made.
9.27.2006 8:49pm
Mark Field (mail):

Anyway, how about putting the question of what is the cost of foregoing harsh interrogation on the table?


I'm guessing you wouldn't accept "your immortal soul" as the answer.
9.27.2006 9:18pm
Elliot Reed:
I thought we liberals were supposed to be the ones who believe that there are no objective moral standards and everything goes depending on the circumstances. Apparently I was wrong, and it's really conservatives for whom anything goes. The complicity of people like Prof. Volokh in the defense of moral evil is appalling.

If you people think what goes on in these interrogation rooms is no worse than fraternity hazing, then you are wrong. Being forced to stand for 40 hours is excruciatingly painful. The muscles that keep you in balance can't stand to be exerted for so long. The cumulative effects of gravity screws up your circulation. Your feet can't take the pressure for that long. Nobody would countenance such things being done to our recruits. The same goes for making people think they're drowning, keeping them naked in a 50 degree cell for days, not letting them sleep for weeks, and so forth. There are worse forms of torture, but to defend these forms of torture on that basis is like arguing that we should legalize rape because murder is even worse.

I once was asked to stay still on a hospital bed for about eight hours. (I'd had a minor incision near a major artery: nothing serious had been done, but they wanted to keep it from opening again.) Being a literal-minded person who obeys doctors, I did my best to do it - stay still on the bed without moving. By the fourth or fifth hour I was begging for prescription narcotics. I can't imagine how horrible it would have been to be forced to maintain an uncomfortable position for much longer than that.

There are objective moral standards, and they are being violated by the administration and its apologists.
9.27.2006 9:25pm
Anderson (mail) (www):
Anderson switched from it never works to it's a given.

Where did I say it never works? Remind me?

As for "hazing," I never attributed that to you; if you think *no one* has said that, well, I beg to differ.

Obviously, we differ not only on the definition of "torture," but of "bad faith" as well.

Really do have to run, but here:

how about putting the question of what is the cost of foregoing harsh interrogation on the table?

How on earth would we measure that? And if it's a fair question, then: what is the cost of becoming a nation that ratifies torture? (Because that is what we're talking about here; we're not arguing over whether you can yell at a prisoner, or tell him his mama's ugly.)

Given the Army Interrogation Manual, I would think the burden would be on the advocates of torture to demonstrate what is allegedly lost by not practicing it. The status quo in this country, from Geneva '49 to the current administration, was that we do not torture (however violated in practice). Those who want to change it, should offer their evidence.

As for A.S. and the L.A. Times on sleep deprivation, well, that is the kind of evidence I'd like to see: was meaningful intel really obtained? Out of how much chaff? Could we get something on the record here? I don't even know, from the article, if it's Army or CIA interrogators alleging that their methods work. If Army, then how did their superiors end up making their mistaken judgment that sleep deprivation *isn't* a good idea?

(An interesting topic: are the Manual's techniques difficult to apply across cultural/linguistic barriers? Is that one reason we've resorted to KGB methods?)

Speaking of sleep deprivation ... y'all rail on; I'll be interested to check the thread in the a.m.
9.27.2006 9:26pm
Anderson (mail) (www):
I'm guessing you wouldn't accept "your immortal soul" as the answer.

LOL, ruefully ... good comment, Elliot ... bye!
9.27.2006 9:28pm
Owen Hutchins (mail):
I can think of a very basic difference between "torture" and "coercive interogation", and "hazing" and "basic training"; in the later, you voluntarily allowed it to start and you can make it stop by telling them you quit.
9.27.2006 9:38pm
Mark Field (mail):
Owen has made an excellent point; in fact, I signed back on to make it.

What makes a torture victim talk -- not "tell the truth", just talk -- is the fact that he knows that the procedure can and will be repeated. If you waterboard me once and demand an answer, I can look up and say "Fuck you". If I know that you can do it again and again, that it will never, ever stop, I have no choice but to submit my will to yours. It's that submission which makes torture similar to slavery and a similar crime against humanity.
9.27.2006 9:57pm
Commenterlein (mail):
Richard,

What you call our bad faith I'd call your lack of comprehension.

For everyone else, let me repeat what I wrote above: If you inflict physical pain (sleep deprivation, standing for days, water boarding) on a person in order to get that person to talk, then you either make the pain sufficiently bad to break the victim, in which case we are talking torture, or you stick with some essentially harmless harassment, in which case they won't talk. Defending the CIA practices as both effective and as harmless hazing doesn't work.
9.27.2006 9:59pm
A.S.:
<i>Could we get something on the record here? </i>

After all the anonymous leaks of classified intelligence material, NOW someone's calling for on-the-record comments?! I'm incredulous.

<i>If Army, then how did their superiors end up making their mistaken judgment that sleep deprivation *isn't* a good idea?</i>

Because that's the polically correct thing to say?
9.27.2006 10:13pm
Baseballhead (mail):
Honestly, people.

If torture is such a good and effective method of interrogation, if it does make this country safer, then I want the Administration to stand up, say so, and prove it. If torture saves lives and garners information that is real and useful, then there should be no limit as to what sort of torture is being inflicted. And if that's the case, then the President needs to stand up, say, "Hell, yes, we're gonna screw the truth right out of anyone we catch because it's the right thing to do."

Since that's not happening, I'm defaulting to the "torture is bad" position. I'm not about to buy that "we don't torture, but ... can you really call that torture?" position.
9.27.2006 10:31pm
Richard Aubrey (mail):
Commenterlein. You tempted me. Let me say again, you are speaking in bad faith. I did not say the techniques are equivalent to fraternity hazing.
What I said was that your side brings in techniques similar to those used in fraternity hazing and calls them torture.
Got that? One thing I don't understand about this kind of discussion. Deliberately misrepresenting what somebody said to the person who said it. How's that math work out? Is the person who actually said it supposed to believe the misrepresentation? And in front of other people who need merely scroll up to check. I don't get what you think you're accomplishing.
I expect you have a carryover from a situation where you can misrepresent what somebody said to others who have no way of checking.
Doesn't work here.
9.27.2006 11:13pm
SANE (mail):
I concede that I have not read all of these comments but it does seem to me that a clear exposition of the arguments for/against torture ought to be made. Rauch shuts off the discussion by dismissing torture.

I will only modestly suggest, for those interested in a rather careful consideration, the following essay: On Torture: A Preliminary Discussion.

In anticipation of the argument that might be raised against my discussion of the Christian Golden Rule, keep in mind that the good and reasonable man who would otherwise consent to his own torture should he become at some future time evil and unreasonable -- and thereby provide for the invocation of the Golden Rule to allow his torture -- could not allow for the torture of an innocent third party (like a family member) to extract information from him since the Golden Rule seeks the view only of the person upon whom it is being enforced.

That doesn't mean that there would not be some other moral justification for the torture of a third party B to extract information from a bad man A in order to save lives. The argument would be based upon the relative value given the lives of citizens versus the lives of "others."

Now, after everyone is done recoiling, it should be noted that we do this all of the time. We certainly accept "collateral" damage and put the moral blame on the offending party even though it was our act, puposeful or accidental that caused the collateral damage. We do this because the collateral damage is to life and limb of the "others" and not of our own. We certainly wouldn't countenance the sacrifice of New York City to save Los Angeles (irrespective of their intrinsic comparative values). That is because they are both "ours" and not "others".

That is to say, for a nation-state to exist, it must value its "own" more than the "others." I tried making this point to David Bernstein on an Israeli thread of his but he just didn't get it, being the good Libertarian that he is. But if you don't begin with the a priori valuation of your own over "others" (what we call in philosophic terms, "political order"--as in ordering or valuing not law and order), you cannot maintain a nation state. This is the philosophical basis to say that a Libertarian cannot be a patriot. See Why do Libertarians Oppose National Existence?
9.27.2006 11:17pm
Richard Aubrey (mail):
As Wretchard said, the problem with torture is that it works. That makes it a dilemma. If it didn't work, we wouldn't be having this discussion.

The insistence that it doesn't work is a way to duck the question.

Are we willing to pay the price in dead Americans as a cost of foregoing torture?

It's one of those hypotheticals, which is a lame excuse for not addressing the issue. But it seems reasonable to presume that, since it works, not using it would have some kind of cost. What might it be and are we willing to bear it?
9.27.2006 11:23pm
SANE (mail):
But the antecedent question, morally or more importantly ontologically, is ought there be a cost-benefit analysis? Why should we "bear any cost"? Would it not be immoral to have one American soldier or civilian suffer in order not to torture? If your analysis is utilitarian and only so, find. Apply the C/B analysis. But that assumes there to be no prior ontological question of the primacy of a man's nation. If the latter were in fact the case--that the prior question simply doesn't exist--then there exists little justification for war. This brings me back to the earlier comment about libertarians. It is why they struggle with casus belli. They are not sure it exists for nation-states. Possibly for men in a state of nature, but not governments defending a People.
9.27.2006 11:31pm
Commenterlein (mail):
Richard,

Your basic comprehension problem is that you think people are talking to you when they really aren't.

I did not misrepresent what you said because I hadn't even read it. My post wasn't addressed to you, and nobody other than you thought so. So stop taking yourself so serious, your sophomoric arguments certainly don't warrant it.
9.27.2006 11:32pm
Randy R. (mail):
Who said torture works? Heck, even Queen Elizabeth I realized that torture, as a means of extracting useful information not already known beforehand, had its limits.

Has there ever been a scientific study that shows that torture works? I just read an article about two women who were brutally tortured -- one had her arm chopped off and was dumped with corpses -- and neither of them told their captors what they wanted to know. Both were amazed at the amount of pain they could endure, but they knew that they could not betray their families.

So there is at least some proof that torture in fact does not work. And we also know that at least some people tell lies or make up stuff just to make the torture stop. In that case, the torture was worse than useless, as the military may actually divert resources to chase a false notion.

So again -- has there been any actual study, scientifically assured, that shows that 'torture works?" Until then, we are all merely speculating. And to adopt such a cruel and painful method based on speculation is not only repulsive, but just stupid as well.
9.28.2006 12:00am
American Psikhushka (mail) (www):
To the torture proponents:

There's one eventuality that you seem to be overlooking in this conversation: Torturing innocent people.

If you're supporting the use of torture you are also accepting the fact that you will be torturing innocent people sooner ot later. Probably sooner, because if an investigation is so stymied that you have to resort to torture you are very likely to torture innocents. In my opinion that's not something a civilized, responsible, liberty-loving country should be in the business of doing.

Throw in the fact that many experienced military, intelligence, and law enforcement professionals believe it to be next to worthless and that's enough data for me.
9.28.2006 12:00am
Randy R. (mail):
Another point no one else has brought up:

If it's ok for the US to engage in torture, then we cannot complain when our enemies engage in similar acts to extract information. Indeed, we encourage it, since we are officially saying that torture works and is an effective technique of war. Therefore, anyone who supports a notion of torture should have no problem if our enemies engage in torture on our military.
9.28.2006 12:02am
American Psikhushka (mail) (www):
SANE-

Complete nonsense that libertarians can't or won't maintain a nation-state. They just vow to protect the rights of its citizens. It doesn't value the lives of its own more than others, it just vows to defend its own against those that are violating the rights of its own.

It's similar to the dynamics of domestic law enforcement. The police don't value (or aren't supposed to) the lives of some citizens over others, they are sworn to protect the lives and property of anyone who is about to have their rights violated.
9.28.2006 12:08am
SANE (mail):
Dear American Psikhushka: you are simply wrong on this point. And, your comment suggests as much. On what basis do Libertarians lock out non-citizens? Why does a nation protect only "its citizens"? Why do you have the right to be a citizen in the US and I, assuming I had been born south of the Rio Grande to mexican citizens, not get to enjoy the benefits of citizenship? Answer that from a libertarian perspective. And, if you're answer is, as is the case with many libertarians, that you are for Open Borders, then what differentiates one nation from another?
9.28.2006 12:26am
American Psikhushka (mail) (www):
Oops - Francis brought up the "torturing innocents" issue earlier in the thread, I hadn't finished reading the whole thread.
9.28.2006 12:30am
Elliot Reed:
Randy R. - as for scientific studies, unless the Nazis or Soviets did such studies back in the day, or our government has been doing them in secret, the answer is no. No such experiment could ever be done publicly in our society, if only for ethical and legal resasons. It would be difficult to extrapolate from the results anyway, since study participants are going to be different from actual terrorists.

In any case, I think we are being overly careless in our consideration of what "works." For example, the victim may start by telling lies, and eventually "crack" and tell the truth. But if you can't easily distinguished when they've cracked from when they're pretending they've cracked so they can sell you lies, you may get 20 different stories, maybe one of which is true, but you can't tell which one.
9.28.2006 12:40am
Mark Field (mail):
I'm wondering which of the torture proponents here think it should be used in domestic criminal cases. Can't find the killer of Jon Benet Ramsey? Torture her parents. Her brother too. Might as well torture Karr as well; just because.

Better yet, let's use it in civil cases. Cross-examination seems like a wussy method for getting the truth. If we waterboard the parties, we can decide every case on summary judgment.
9.28.2006 12:59am
Dilan Esper (mail) (www):
Look, some people think that torture is a vague term and that any interrogation tactic that they wish to continue using must be, by some definition, not torture.

However, I will tell you that, pre-September 11, if an alien had brought a suit under the Torture Victim Protection Act, 28 U.S.C. § 1350 note, based on waterboarding, long-time standing, or hypothermia, and they got a jury verdict in their favor, it would have been affirmed 3-0 by any Court of Appeals panel and 9-0 by the US Supreme Court.

There wasn't any misunderstanding or vagueness about the meaning of torture until the Bush Administration decided to shred international law and commit war crimes and try to define their way out of it. And I say this as someone who has participated in torture litigation and is quite familiar with the definition.
9.28.2006 1:04am
American Psikhushka (mail) (www):
SANE-

On what basis do Libertarians lock out non-citizens?

The immigration laws.

Why does a nation protect only "its citizens"?

I can't speak for other nations, but in the US its because it has been created by the Constitution to provide for the common defense of its citizens.

Why do you have the right to be a citizen in the US and I, assuming I had been born south of the Rio Grande to mexican citizens, not get to enjoy the benefits of citizenship?

Due to the law - I was born here, that makes me a citizen. In your hypothetical you weren't born here, therefore you won't be a citizen until you apply for entry and become a citizen lawfully.

I'm not an "Open Borders" libertarian. I'm also not a racist, elitist, or xenophobe. I don't know what you wanted to know about my views on immigration, so I'll just throw down the basic points:

- I don't think many libertarians argue that there shouldn't be codified laws, since even in anarchy you would need codified laws to settle disputes between private parties. We don't live in a perfect world, so at least some immigration laws are necessary for the time being.

- I think some governments use our relatively lax immigration policies to their advantage. Some are free to engage in corruption, looting the public coffers, various socialist experiments, etc. and the US immigration policy operates as a "safety valve" to let them and their backers "off the hook". When the bad policies, corruption, etc. ruin the economy many of the able-bodied (and also some troublemakers) get shunted to the US to work and therefore can't agitate for or attempt to change things. So in a sense the US economy is funding and enabling a lot of corruption, failed socialist experiments, etc. - this isn't how you work to create responsible and prosperous governments in some of these areas.

- Nearly every other nation has some kind of immigration policy and many are stricter than ours. Even Mexico, who constantly criticizes and attacks ours, has a fairly strict immigration policy. Their southern border with Guatemala sounds like it is at least as controlled as ours, possibly more so. I really don't know why this hypocrisy isn't pointed out more often.

- Post 9/11 our borders should really be sealed. In fact, I look at the fact that the borders aren't sealed as proof that the Neocons aren't serious about security and that it is only being used as a ploy to grab powers, maintain power, erode civil rights, enact their wacky, nonsensical plans like the PNAC "plan", etc, etc, etc....

- I think we should have a relatively liberal immigration policy, but not open borders for now. We should provide asylum for those in danger, but our country shouldn't be a "safety valve" and funding for corrupt or inept regimes to stay in power. Those whose talents, education, or labor we have a need for and who would like to come to our country to work, study, or become citizens should be allowed to, with some amount of screening.
9.28.2006 1:11am
David M. Nieporent (www):
That's quite a "given." And I just love how you glibly dismiss the Army Interrogation Manual, and with it the work of professional interrogators, who unlike us know personally what they're talking about.
Anderson: if torture is, and has been, illegal, then how do they "know personally what they're talking about"? When did they get the opportunity to enage in experimentation with torture to form the conclusion that it doesn't work?
9.28.2006 2:10am
Francis (mail):
maybe they were torturing in their spare time?

[hat tip to Monty Python]

to the supporters of the President's position:

what is the limiting condition? how do we as a society prevent the growth in the use of torture? you are, remember, supposed to be the skeptics on the ability of the government to constrain itself. (see, eg, the posts on the ESA or TSA.)

most critically, how do you answer the moral argument that torture is wrong and does not reflect our values?
9.28.2006 3:03am
JunkYardLawDog (mail):
Anderson, Francis et al

You constantly refer to the slightly more aggressive questioning techniques needed to question these illegal non-uniformed combatants as torture when they are NOT torture. We don't torture and no person here that I'm aware of (including of course myself) supports torture. You all constantly set up this strawman that the techniques being discussed are torture and then argue against the torture strawman.

These techniques (and I personally would include waterboarding as a non-torture technique since it does absolutely no permanent or even temporary physical harm) are NOT torture. However, they might be affronts to one's personal dignity in the opinion of some whacko leftists and europhiles and therefore argued to violate common article 3 of the Geneva conventions that the crazy old farts on the Supreme Court were kind enough to rule apply (even thought they don't apply in reality and never did apply in reality) to these non-uniformed illegal combatant terrorists in this June's quite ill informed Hamdan opinion.

So if you oppose torture, he no argument so do I, but the questioning techniques under discussion by the President aren't torture so you're barking up the wrong tree.

As a side note, I find it amusing that not a single person here arguing against the faux strawman torture argument was willing to answer the questions about specific items being considered torture or not or being forbidden by the vague language of common article 3 or not. I would also note that if the extremely vague and undefined language of common article 3 were embodied in a criminal statute in the USA and applied to some common everyday murderer, that every single one of the liberals here railing against the torture strawman and refusing to criticize or provide definitions/clarifications for common article 3 would most certainly argue that the very same language from common article 3 contained in a criminal statute of the USA was unconstitutionally vague and unenforceable with out more specific descriptions of what would be unlawful conduct.

Imagine for example how the liberals here arguing against the faux torture strawman would turn red faced and go kicking and screaming into the night if an unemployed hippie greenpeace worker were arrested by local cops for making "personal affronts to the personal dignity" of some corporate CEO while hurling insults and making threatening gestures at that CEO and his 10 year old daughter outside of their home. Imagine, how they would rail against the unconstitutionally vague language under which the unemployed hippie terrorist for greenpeace was charged. Imagine how they would argue forcefully that the standard in the criminal statute of "affronts the personal dignity" of the victim was so vague and undefined as to be unconstitutional and unenforceable because no person could reasonably determine in advance what conduct would be prohibited by the criminal statute. Is there anyone here who thinks this is not exactly how the entire liberal crowd here arguing against the faux torture strawman would view the extremely vague language of common article 3 in any other criminal law context? I certainly don't.

So what is the difference between the vague language of common article 3 being good in the liberals' war on the war on terror versus the very same vague language in a USA criminal statute? The only difference I can see is that if they support the vague language of common article 3 in the liberals' war on the war on terror, it puts them against the interests of the USA (and President Bush), a place all good liberals and europhiles love to hate/blame first before any other place or cause. This is in fact their first imperative, an imperative derived from their consistent actions against the interests of the USA. It is the overriding reconciling principal that guides their actions, whether they know it or not or whether they acknowledge it or not on a conscious level.


Says the "Dog"
9.28.2006 8:17am
Richard Aubrey (mail):
I don't see much interest in the question of whether we, as a nation, are willing to bear the cost of foregoing torture?
It is certainly possible innocent people will be tortured. Jonah Goldberg spoke of killing having been more or less accepted as a necessity in war, and that would include the accidental killing of non-combatants. From time to time, when nations are at war, the question of whether the guy who works in a munitions plant is a non-combatant in any practical sense arises. So there's a gray area there.

The use of torture, or less aggressive techniques, Goldberg says, can be related to killing. The second is okay, under certain circumstances. Why should not the first be, since it's no worse than killing? Where lies the distinction? Other than that the killing argument has basically been finished and accepted. If one, why not the other?

Our guys in North Korea, and the Hanoi Hilton, and the resistance in Europe, broke under torture. Some of the stuff they gave up was of little use, some was deliberate lies, and some may have been valuable. We don't know how much technological knowledge went from Hanoi to Russia, so how valuable the result was is unknown. Moot at this point, probably.

The organized use of torture has helped intel guys in the past. Otherwise, nations have been paying for free-play for sadists for thousands of years to no useful end.

Anyway, are we willing to even discuss the cost of not using it?

IMO, the reason not to discuss it is the suspicion that it might work and then we'd have to seriously consider using it, a sweaty and unpleasant prospect.
9.28.2006 9:16am
Anderson (mail) (www):
And a-round we go ...

Anderson: if torture is, and has been, illegal, then how do they "know personally what they're talking about"? When did they get the opportunity to enage in experimentation with torture to form the conclusion that it doesn't work?

"Personally" was misleading; I meant as experts. We learn a great deal about torture from debriefing our personnel who've been tortured, and of course from accounts like Bukovsky's, as well as from talking to torturers from other countries.

A.S. thinks that the U.S. Army places "political correctness" over the security of the nation. Doubtless due to all those commie-pinko-Nation subscribers who opted for military careers and rose to high rank in the Pentagon. --You know, if y'all thought for 3 seconds before writing this stuff, it wouldn't be so easy to mock.

Baseballhead hits a homer: if torture's so great, then say so, Mr. President. The failure to say so is prima facie evidence that it ain't so great.

Finally, re: the disgusting vote last night to effectively negate the Geneva Conventions, Yglesias:

Those Democrats running so scared of GOP attack ads that they're willing to toss the constitution, basic morality, and common sense about effective interrogations overboard in a futile effort to convince the Republicans not to call them soft on terrorism sure do look "tough," don't they?

I pretty much expect the Republican Party to act like Nazi wannabes at this point, but to see the Dems afraid to denounce torture and habeas-stripping is still painful. God save America.
9.28.2006 11:28am
Ken Arromdee:
There's one eventuality that you seem to be overlooking in this conversation: Torturing innocent people.

That's like saying that when you decide to go to war, you overlook the fact that it kills innocent people.

Yes, it does, and while we can try to minimize it, we can't eliminate it. Is that a reason why we should never go to war?

If the fact that war will inevitably kill innocent people is not a reason to avoid all war, why is the possibility of torturing innocent people a reason to avoid all torture?
9.28.2006 11:32am
Anderson (mail) (www):
If the fact that war will inevitably kill innocent people is not a reason to avoid all war, why is the possibility of torturing innocent people a reason to avoid all torture?

That's why war is supposed to be a last resort, against open and obvious danger to your country.

Torture doesn't compare, except perhaps in the "ticking bomb" scenario, which is much easier to write for Hollywood than to encounter in real life. If there were alternatives to war that were even more effective, then war would always be wrong. There *are* more effective alternatives to torture -- proper interrogation by trained people who know what they're doing.
9.28.2006 11:40am
Commenterlein (mail):
"You constantly refer to the slightly more aggressive questioning techniques needed to question these illegal non-uniformed combatants as torture when they are NOT torture. We don't torture and no person here that I'm aware of (including of course myself) supports torture."

JunkYardLawDog,

Here is a proposal: come over to my house and I will use the exact same techniques to inflict sufficient pain on you to turn you into a whimpering mass willing to say anything I want to hear. Then we will stop for a few minutes, and then we will start again. We will keep going for a few weeks. But don't worry, it's no big deal, it really isn't torture at all, and we would certainly never support such a vile thing. And if you dare complain about this wee bit of non-torture, I will just read this very clever sentence to you:

"These techniques (and I personally would include waterboarding as a non-torture technique since it does absolutely no permanent or even temporary physical harm) are NOT torture. However, they might be affronts to one's personal dignity in the opinion of some whacko leftists and europhiles and therefore argued to violate common article 3 of the Geneva conventions that the crazy old farts on the Supreme Court were kind enough to rule apply."

That'll make you feel better.

It's the existence of people like JunkYardLawDog that make me question whether I am still in America.
9.28.2006 12:16pm
Anderson (mail) (www):
Here's a link to that Atlantic article I mentioned upthread; not sure whether nonsubscribers can read it.

James Joyner quotes at length, so go look. Here's a sample:
Part of why [U.S. Marine] Sherwood Moran became such a legendary figure among military interrogators was his cool disregard for what he termed the standard "hard-boiled" military attitude. The brutality of the fighting in the Pacific and the suicidal fanaticism of the Japanese had created a general assumption that only the sternest measures would get Japanese prisoners to divulge anything. Moran countered that in his and others' experience, strong-arm tactics simply did not work. Stripping a prisoner of his dignity, treating him as a still-dangerous threat, forcing him to stand at attention and flanking him with guards throughout his interrogation—in other words, emphasizing that "we are his to-be-respected and august enemies and conquerors"—invariably backfired. It made the prisoner "so conscious of his present position and that he was a captured soldier vs. enemy intelligence" that it "played right into [the] hands" of those who were determined not to give away anything of military importance.
Very much worth a look. N.b. that Moran knew Japan's language and culture. As I suggested upthread, a lot of our resort to torture may've been in lieu of having trained personnel with the necessary backgrounds.
9.28.2006 12:20pm
Ken Arromdee:
Here is a proposal: come over to my house and I will use the exact same techniques to inflict sufficient pain on you to turn you into a whimpering mass willing to say anything I want to hear. Then we will stop for a few minutes, and then we will start again. We will keep going for a few weeks. But don't worry, it's no big deal, it really isn't torture at all, and we would certainly never support such a vile thing.

I would object if you came to my house and just locked me up. Does that mean that ordinary jail is also a form of torture?
9.28.2006 12:21pm
Commenterlein (mail):
Ken,

I don't see your point. There are unpleasant things other than torture, no doubt, but that doesn't change the simple fact that the techniques we are discussing are designed to inflict unbearable pain on their victim and are therefore torture.
9.28.2006 12:34pm
Anderson (mail) (www):
the techniques we are discussing are designed to inflict unbearable pain on their victim and are therefore torture

I suppose I would add "misery" to cover sleep deprivation, though not having been kept forcibly awake for days on end, I really couldn't tell you if it hurts or not.

Do not waste time trying to convince JYLD of anything, is my advice from previous threads. He has the courage of his convictions.

And the evidence that forced standing, etc. are indeed "torture" is available, upthread &elsewhere. Sticking one's fingers in one's ears and saying, "It's not torture! It's not! It's not!" is persuasive to oneself at best ....
9.28.2006 12:42pm
Mark Field (mail):

I don't see much interest in the question of whether we, as a nation, are willing to bear the cost of foregoing torture?


That's because it's a bad question. Imagine how far this logic takes you: "I don't see much interest in the question of whether we, as a nation, are willing to bear the cost of foregoing the gang-rape of 5 year old girls." You see? Your logic allows the substitution of any phrase whatsoever. It's impossible to resolve issues in that way.


If the fact that war will inevitably kill innocent people is not a reason to avoid all war, why is the possibility of torturing innocent people a reason to avoid all torture?


We all understand that non-combatants may be killed unintentionally, but that excuse can't apply to torture because the prisoner is already under your control and the infliction of torture hardly qualifies as "unintentional".


The use of torture, or less aggressive techniques, Goldberg says, can be related to killing.


No, torture is more similar to rape or slavery. Murder is wrong because it deprives someone of life. Rape and slavery are wrong because they steal the fundamental humanity of the victim, the right of personal integrity. That's what torture does, and it's why torture is an essential tactic in maintaining a slave culture; it's also why rape is such a common feature of slave culture.


I find it amusing that not a single person here arguing against the faux strawman torture argument was willing to answer the questions about specific items being considered torture or not or being forbidden by the vague language of common article 3 or not.


Apparently you didn't read the thread above, because there are several posts which do this.

I find the "lacks precision" argument especially ironic in the context of the particular bill which is pending. That bill makes the terms more vague, not less so. The reason for that is intentional: to let Bush continue to torture people secretly.

If the Administration really wanted a clear statute, it would have been written to say "the following techniques are permissible: A, B, C". The bill doesn't do that. It's complex, difficult to interpret, and as poorly drafted a statute as anyone is ever likely to see.
9.28.2006 1:02pm
Oren (mail):
1) Detainees should not be required to stand.
2) All questioning should take place in a room heated to the same temperature as the guards quarters
3) Interrogation of a Muslim detainee by someone of the opposite sex is degrading or humiliating and should be avoided.
4) Interrogation of a Muslim detainee that overlaps with the 5x daily prayer, Friday mosque service, or other religious observances is degrading or humiliating and should be avoided.
5) During interrogation a detainee should not be subjected to sounds.
6) No detainee shall be forcibly kept awake.
7) 'Standard tactics' that work as well or better than coercive techniques in terms of quality and volume of information obtained and time required to obtain information are as follows:
Respect, Due Process.
9.28.2006 2:31pm
Richard Aubrey (mail):
Mark Field. You need to take a breath and a break.

Substitute "gang rape of a five-year old girl" for the question I posed.

That question's been answered already. The only downside is the perps don't get their jollies and we, as a society, are prepared to live with that.

Stupid, stupid analogy. Stupid.

The question is, are we prepared to undertake the cost of going without the information which could be gained through harsh interrogation? What are the costs likely to be and what do we choose?

The Japanese POWs were surprisingly likely to talk for two reasons. One is they'd never been trained about being POWs, since they were supposed to die first. The other is that, since they had surrendered and not died, they were cut off from their own ideals, shamed, and felt hugely unworthy. The usual techniques of isolation, speed to the rear, and so forth, which tend to disorient the POW are useful. But in the case of the Japanese POWs, that disorientation had already happened, and worse than we expected.

The Germans surrendering to Americans knew the war was over and they'd be doing easy labor on an American farm. Good food. Education. No fighting. Best of all possible worlds for them. What a relief to be captured.

The current enemies are not in either mode. So what we got for our efforts from the Japanese and Germans are not guides for what we'll get by one kind of treatment or another in the current situation.
9.28.2006 2:56pm
Oren (mail):
By way of example of Rauch's braindead argument, here's a good utilitarian alternative.

On average, about 400 Americans are killed in terrorist actions each year while 16,000 are killed in drunk-driving accidents. Therefore, I proposed the "Drunk Driver Treatment Act of 2006":

Henceforth, all persons who seriously hurt someone while driving drunk will be designated as 'Unlawful Road Threats' and transfered to the personal jurisdiction of the AG who will brutally torture them and then remand to the DOD where they will be held for as long as Mr Rumsfeld feels like holding them.

(1) This act would save more lives than ANY antiterrorist action whatsoever since it will result in, at the very minimum, a 2.5% reduction in the drunk driving fatality rate.

(2) Drunk drivers are Bad People.

(3) Won't someone please think of all the innocent lives that will be saved??? Don't those innocent victims have rights???

Ref: http://www.madd.org/news/0,1056,5542,00.html
9.28.2006 2:57pm
Oren (mail):

The question is, are we prepared to undertake the cost of going without the information which could be gained through harsh interrogation? What are the costs likely to be and what do we choose?


400 lives a year at the very maximum, assuming that we could prevent 100% of the attacks if we would just let our interrogators go to town.

I'm sorry to be callous but that cost is trivial. 40,000 a year die in car accidents. 30,000 a year from firearms. 4,000 people drown and 13,000 fall to their deaths.

Terrorism is, and alway will be, a peripheral concern at best. At worst, it's a serious distraction from our actual business.
9.28.2006 3:05pm
Oren (mail):
http://www.the-eggman.com/writings/death_stats.html
9.28.2006 3:06pm
Randy R. (mail):
You know, if I operated a terrorist cell somewhere, and I knew that the US used torture to extract information, I would find a way to get around it. Seems rather simple, in fact. First, (something I would probably do anyway) you make sure that no one person in the organization knows the whole plan to blow up a building or commit some other terrorist act. That way, if my man is caught, the worst he can do is provide only one piece of the puzzle, hopefully a very small piece.

Second, I would make sure that some men in my cell get false information, but have them believe it is part of the real plan. So if some of them get caught, the US is sent down the wrong path, diverting its resources from the real plan.

So if the CIA picks up a random set of my men, they will torture the guys, who will spill their guts, and the information will be at best a few pieces of the puzzle, and some of those pieces will contradict the other pieces. So who'se telling the truth? They all are, since they all believe that they were given a piece of the true plan. Of course, they also might slip that this was the plan all along, which will make things even more confusing for the CIA, since they will know some pieces are true and some are not, but which ones?

So if I can think up a way around the torturing, don't you think someone who has a real stake in this could come up with something similar, or even better? And in the end, what will the torturing get you?

Far better to infiltrate the cells and find out what's really going on, using old fashioned police work, and stop it at its source than try to piece it together after the fact. But I guess some of you would say that's so pre-9/11.

And how about letting people stay in the military who can translate Arabic into English to intercept their messages of terrorism? But I guess some of you are too afriad of having a gay man in the military than to actually combat terrorism.

This is all so wrong-headed. And once the fever subsides, we will all wake up and wonder how we got to where we are.
9.28.2006 3:15pm
Richard Aubrey (mail):
Oren. That's now. They're trying to do better.

Randy. It's been tried. It's in the manual. It makes the intel guys' work tougher. It isn't perfect.
9.28.2006 3:35pm
Ken Arromdee:
Randy: You are arguing for too much. That plan doesn't specifically prevent gathering information by torture. It prevents gathering information through any form of interrogation whatsoever.

By your reasoning *all interrogation* is unreliable.
9.28.2006 3:36pm
Elliot Reed:
Oren - the assumption is even stronger than that. The assumption you need, to get 400 lives saved by torture, is that without torture we can't stop any terrorist attacks, and with torture we will stop all of them. That assumption is too absurd to merit refutation.
9.28.2006 3:41pm
Anderson (mail) (www):
Look, there goes Randy's point! --Oh, wait, sorry, y'all missed it.

The point is that, assuming minimal prudence on the part of the enemy, interrogation doesn't produce a Hollywood style "the RED wire! cut the RED wire!" revelation. And there are better ways than torture to conduct interrogations.

As the Atlantic article I linked says (at OTB, so no sub req'd):
Moran’s whole approach--and Hans Joachim Scharff’s, too--was built on the assumption that few if any prisoners are likely to possess decisive information about imminent plans. (And as one former Marine interrogator says, even if a prisoner does have information of the “ticking bomb” variety--where the nuke is going to go off an hour from now, in the classic if overworked example--under duress or torture he is most likely to try to run out the clock by making something up rather than reveal the truth.) Rather, it is the small and seemingly inconsequential bits of evidence that prisoners may give away once they start talking--about training, weapons, commanders, tactics--that, when assembled into a larger mosaic, build up the most complete and valuable picture of the enemy’s organization, intentions, and methods.
Scharff's subjects didn't even know when they'd told him anything useful; he kept it all very casual, &thus ended up getting something out of even the most hardened prisoners.
9.28.2006 4:27pm
Mark Field (mail):

That question's been answered already.


It was answered long ago with respect to torture:

"Sir John Fortescue Chiefe Justice of England, wrote his Book in commendation of the lawes of England; and therein preferreth the same for the government of this countrey before the Civill Law; and particularly that all tortures and torments of parties accused were directly against the Common Lawes of England, and showeth the inconvenience
thereof by fearfull example, to whom I refer you being worthy your reading. So as there is no law to warrant tortures in this land, nor can they be justified by any prescription being so lately brought in."

Coke.

That hasn't stopped the Bush Administration -- or you -- from raising the issue.

Nice dodge of my point, though.
9.28.2006 4:36pm
Baseballhead (mail):
400 lives a year at the very maximum, assuming that we could prevent 100% of the attacks if we would just let our interrogators go to town.

Of course, that's assuming 100% of the information we need is at hand, and that torture will produce 100% accurate results. But if that were the case, we'd surely have some indisputable evidence that shows that torture is absolutely effective, and has been in the case at hand. And if THAT were the case, then the President could stand in front of a podium and say that, yes, harsh methods are justified, have saved lives, and here's the evidence.

Since that hasn't happened, I'm still defaulting to "torture is bad."
9.28.2006 4:49pm
Anderson (mail) (www):
Great cite, Mark--thanks!
9.28.2006 5:38pm
Andrew J. Lazarus (mail):
Funny, when it comes to gun control this site is full of slippery slope arguments. Torture, though, that's something else.

Torture is worthless as an investigative technique not because of the people who can still resist, but because of the flood of false positives. In these threads I always ask if the commenter believes the worst of Cardinal Mindszenty and the Jewish Iranian shoe salesmen who confessed to being spies, not to mention the Stalin Purge victims. If not, then torture produces false confessions.

In some contexts, false confessions are not a problem: for example, if the main purpose of the interrogation is not to elicit genuine information, but to intimidate the population from whom the victims are drawn. Nor are false confessions a problem if, say, you are a Nazi general and you don't care how many innocent civilians also get croaked in rounding up a Resistance cell. It's rather telling that the Nazi interrogator Scharff, who didn't use torture, was in a situation where accuracy mattered. The Nazis couldn't waste time and materiel dealing with torture-induced mirages.

The CIA interrogators can always "confirm" the intelligence they get with a circle-jerk of coerced nonsense. And the resulting terrorist threats can be used—have already been used—to keep the American people terrified and the Republican Party in power.

The Bush bill has many features in common with the Reichstag Fire Decree, except that Hitler saw no need to "clarify" the Geneva Conventions.
9.28.2006 7:03pm
Anderson (mail) (www):
Andrew! Still fighting the good fight at Tacitus.org? That site wears me out ... tho I doubt they're ignoring the habeas issue in favor of "pet law" posts.

Cardinal Mindszenty

IIRC, he succumbed precisely to the techniques that "aren't torture," like sleep deprivation.
9.28.2006 7:16pm
David M. Nieporent (www):
Moran’s whole approach--and Hans Joachim Scharff’s, too--was built on the assumption that few if any prisoners are likely to possess decisive information about imminent plans.
That may be true if we're talking about a random Japanese soldier captured on the battlefield. Why would they have much useful information? But is it true if we're talking about, say, a general? Or, in this case, a senior AQ member like KSM?
9.28.2006 7:26pm
Anderson (mail) (www):
Mr. Nieporent, please see the parenthetical following the language that you quote.

And since it appears that some are still visiting this lengthy thread, here's a link to a David Corn column on waterboarding: actual photos of Khmer Rouge waterboards, and a painting by one of their prisoners of what the actual torture looked like.

Please do follow the link, but here's the part most germane to our thread:
... the torture techniques of North Korea, North Vietnam, the Soviet Union and its proxies--the states where US military personnel might have faced torture--were NOT designed to elicit truthful information. These techniques were designed to elicit CONFESSIONS. That's what the Khymer Rouge et al were after with their waterboarding, not truthful information.

Bottom line: Not only do waterboarding and the other types of torture currently being debated put us in company with the most vile regimes of the past half-century; they're also designed specifically to generate a (usually false) confession, not to obtain genuinely actionable intel. This isn't a matter of sacrificing moral values to keep us safe; it's sacrificing moral values for no purpose whatsoever.
A fair number of Bush's supporters seem to maintain that waterboarding isn't torture. Think again, folks.
9.28.2006 7:43pm
Randy R. (mail):
Is it true that sexual assault would be allowable under the new rule? Apparently, it is 'unclear' whether it is, and the Senate halted debate on this very topic, leading one to conclude that it would be discretionary with the interrogator.

Whatever. For those advocates of torture, is sexual abuse acceptable or not?
9.28.2006 8:03pm
Mark Field (mail):

Is it true that sexual assault would be allowable under the new rule?


Best I can tell, rape itself is forbidden, but forcible oral copulation is not. The bill is here if anyone else wants to try their hand at interpretation. As I said above, it's a very difficult bill to follow. It's full of cross-references, partial amendments to other statutes, and vague language.
9.28.2006 8:38pm
Elliot Reed:
Mark Field -
`Sec. 950bbb. Rape

Any person subject to this chapter who forcibly or with coercion or threat of force wrongfully invades the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object, shall be punished as a military commission under this chapter may direct. (emphasis added)
It doesn't just not contemplate oral rape, but also fails to contemplate that rape is sex with someone without their consent, not just sex with someone by threat of force. This is especially relevant in the detainee context: no prisoner subject to interrogation can consent to sex with a guard.
9.28.2006 10:04pm
Andrew J. Lazarus (mail):
Yeah, I'm still fighting at Tacitus.

We are all good Germans.
9.28.2006 10:10pm
Anderson (mail) (www):
It doesn't just not contemplate oral rape

And I thought we were just *metaphorically* fellating our torturers ...
9.28.2006 10:21pm
Oren Elrad (mail):

Torture is worthless as an investigative technique not because of the people who can still resist, but because of the flood of false positives.


No, torture might be a fine investigative technique, much like cutting off all rapists' balls might be an excellent deterent to rape. In fact, with respect to the latter, I have no doubts whatsoever.

Both might be quite beneficial in terms of preventing future Bad Things from happening. So why is the former OK but that latter not?

Certainly the rapist doesn't have a higher moral standing than a terrorist. Nor does the damage done by terrorists greatly outweigh that done by rapists.
9.28.2006 10:56pm
Randy R. (mail):
In fact, why not just scrap the Const. Amend. against cruel and unusual punishment? And scrap the usual constraints of having a trial by jury, confronting ones' accusers, and so on?

In fact, why don't we just go back to the trial by fire? You know, in the middle ages, you grabbed a red hot iron. If the wound healed in a few days, you were innocent, but if it didn't you were guilty. It's so much easier than having to collect evidence, prep witnesses, read law books and so on. And those wily defense attorneys always finding some technicality! With the fashion today of Christianity, it adds that touch of religion that appeals to Bush and his followers.
9.28.2006 11:04pm
American Psikhushka (mail) (www):
Oren Elrad-

What if you were falsely accused of rape, would your idea be so keen then?

For that matter, what if you were falsely accused of terrorism?

My suspicion is that you would suddenly develop a keen respect for the Constitution and Bill of Rights. That is if they were in existence in this hypothetical.
9.28.2006 11:55pm
JunkYardLawDog (mail):
Anderson


Sticking one's fingers in one's ears and saying, "It's not torture! It's not! It's not!" is persuasive to oneself at best ....


Sort of like sticking one's fingers in one's ears and saying their is no boogie man and it is torture, it is it is.

Commenterlein


It's the existence of people like JunkYardLawDog that make me question whether I am still in America.


You aren't. You are a liberal and you hate America. No doubt a product of a hate america first teacher's union run public school environment.

Your statement quoted above has the humorous effect of confirming my statements about the hate america first liberal crowd however. Right up there with "Steve's" questioning whether America is worth saving.

Commenterlein, Anderson, Randy et al continue to make their strawman faux torture arguments and to this they add with great frequency various comments that are based entirely upon the false analogy that the actions of illegal enemy combatants conducting an illegal yet declared war against the USA are the same as any ordinary citizen/legal resident criminal and entitled to constitutional protections afforded any run of the mill criminal citizen/legal resident.

They completely ignore the obvious falsity of these analogies and their numerous arguments based upon this false analogy while decrying with bleeding hearts the "trashing of constitutional rights and procedures" not being afforded to these illegal enemy combatants captured on the battlefield, as it were. Never do they offer a single argument or statement that either recognizes the differences between enemy combatants committing violent acts as part of an illegal war against the USA and the criminal actions of an ordinary USA citizen/legal resident committing ordinary crimes. Clearly they avoid these differences and failures in yet another set of strawman arguments because to confront the inapplicability of these strawman analogies would require them to deal with the FACT that never in the history of this country or in the history of the world have enemy combatants or POW's been afforded access to normal criminal courts to contest their detentions while the war was still ongoing nor have these enemy combatants/POW's ever been afforded the panoply of constitutional protections afforded to ordinary criminal defendants of a civil society not at war. Instead they place fingers in ears and decry the outrageous loss of constitutional protections that should, in their warped world view, be afforded to enemy combatants/POW's at a time of war.

Courage of their convictions and faux analogies, yes indeed.

Says the "Dog"
9.29.2006 1:50am
Andrew J. Lazarus (mail):
Dog, would you please define what an illegal enemy combatant is, and who should make the determination in what forum and what rights of defense the accused will have.

Please also tell us where the battlefield is. If the battlefield is the entire world, then isn't it true that the Consitutional protections are no longer available to anyone?

Then we can talk.
9.29.2006 2:29am
JunkYardLawDog (mail):
Lazarus,

Illegal enemy combatants are non-uniformed non-state aligned members of or adherents to an international organization or ideology dedicated to making war upon the government, civilians, and military of the USA. (more or less off the top of my head).

They have no rights of defense, they deserve to be summarily executed by any 18 year old member of the military pursuant to the rules of engagement in effect for that particular battlefield location.

As with all wars, the executive acting through the members of the military under its control makes the determination pursuant to the rules of engagement established at the time for that particular area of the battlefield.

Yes the battlefield is wherever the enemy has personnel and operations, but the Congress or the President are free to define the battlefield to be a subset of locations meeting this definition.

Constitutional protections are not properly available to the enemy at a time of war and never have been. Personally, I don't see how anyone except a person with a death wish for themselves of this country could think otherwise.

The war is not indefinite. Congress, if controlled by the Democrats, would be free to declare defeat and surrender anytime they so choose. Congress as controlled by the republicans are free to declare victory and stop funding the war any time they so choose. Congress is free to specify or influence at a minimum the rules of engagement and location of physical battlefields through their exclusive control of spending.

Take a deep breath. The sky isn't falling. Life goes on, especially if we keep killing and aggressively questioning the enemy.

Says the "Dog"
9.29.2006 2:55am
Baseballhead (mail):
The war is not indefinite. Congress, if controlled by the Democrats, would be free to declare defeat and surrender anytime they so choose. Congress as controlled by the republicans are free to declare victory and stop funding the war any time they so choose. Congress is free to specify or influence at a minimum the rules of engagement and location of physical battlefields through their exclusive control of spending.

Apparently, the only thing Congress can't do is actually declare war -- they've ceded that right to the President.
9.29.2006 2:03pm
Oren (mail):

Oren Elrad-

What if you were falsely accused of rape, would your idea be so keen then?

For that matter, what if you were falsely accused of terrorism?

My suspicion is that you would suddenly develop a keen respect for the Constitution and Bill of Rights. That is if they were in existence in this hypothetical.


Sarcasm.

JunkYardLawDog - -

Suppose, arguendo, that I agree with your definition of EC. Just who makes the determination that a particular person is an EC? What sort of procedural rights do they get? Can Rumsfeld just 'declare' that you are an EC or do you get to challenge the fact that (I presume) there is no factual basis for such a declaration?
9.29.2006 2:29pm
JunkYardLawDog (mail):
Oren,

S

uppose, arguendo, that I agree with your definition of EC. Just who makes the determination that a particular person is an EC? What sort of procedural rights do they get? Can Rumsfeld just 'declare' that you are an EC or do you get to challenge the fact that (I presume) there is no factual basis for such a declaration?


1. Who determines? military, FBI, NSA, CIA, and even law enforcement, possibly under some circumstances, acting in and on the battlefield under rules of engagement established by the Commander in Chief and/or possibly Congress for that particular battlefield location.

2. What procedureal rights? An almost stupid question with regard to enemy combatants at a time of war. Agains reflects a law enforcement approach to warfare that has never previously been applied to enemy combatants. They have in general the right to be shot pursuant to the rules of engagement for that battlefield location. If taken prisoner/detained they have those rights and procedures established by the commander in chief and/or possibly congress.

3. Can Rumsfeld declare me or any person an enemy combatant from the confines of his D.C. office? Again a rather flimsy question based upon a whole series of ridiculous assumptions. Rumsfeld has the same rights to declare someone an enemy combatant as did FDR or his secretary of defense during world war II. In other words not really any such right. Nor would any rational person interested in winning the current war be worried about these kinds of angels dancing on the heads of pins type of ridiculous worries/questions. Enemy combatants are found/declared in general by engaging them in combat on the battlefield, intercepting their spies and infiltraitors in the act of spying and infilitrating. The same way its been done for thousands of years. These aren't hard questions except to those who seek to make hard and complex what is relatively simple and straight forward.

Enemy combatants have only those rights and procedures available to them by the procedures established by the commander in chief and/or congress through statute and treaty.

I'm happy to risk that Rumsfeld will order I be picked up and sent to Guantanamo or a CIA secret prison because that risk is so miniscule that it approaches 1/infinity which is also the value of your strawman assertions disguised as questions.

Says the "Dog"
9.29.2006 6:03pm
JunkYardLawDog (mail):
Baseballhead,

Congress did declare war. Its called the AUMF. A President does not need a declaration of war to act in response to acts of war perpetrated upon the citizens and property of the USA. The President only needs a declaration of war to initiate a war against a country that has not declared war on us and/or is not a threat to the USA/Union in a manner that requires immediate action by the President in pre-emptive defense.

Says the "Dog"
9.29.2006 6:09pm
Andrew J. Lazarus (mail):
I'm happy to risk that Rumsfeld will order I be picked up and sent to Guantanamo or a CIA secret prison because that risk is so miniscule that it approaches 1/infinity which is also the value of your strawman assertions disguised as questions.

Ninety-nine percent of Germans didn't have to worry about the anti-Jewish laws, either. Many of Stalin's subjects also lived nice, secure, happy lives. The question is what sort of structure makes for the best government. The Federalist Papers were our Founding Fathers way, and they came down heavily in favor of things like checks-and-balances and habeas corpus. If you want to stack that against the structure of arbitrary rule by the executive, as long as you aren't the target, go ahead. But don't pretend you're part of the American legal tradition, pre-Bush, OK?
9.29.2006 10:48pm
JunkYardLawDog (mail):
Lazarus,

We are currently in a war against a bunch of new would be Nazi's, the fact that you and those on your side continually posit "our side" is the Nazi side makes it impossible to take your thoughts and assertions with any degree of seriousness. Don't pretend that your inability to distinguish between the threats posed by Hitler and the Nazi's or the threats posed by our enemy Al Qaeda, et al with our own humble servants such as Don Rumsfeld, etc. are anything but irrational delusions, pre or post Bush.

The American legal tradition in fighting wars and the powers necessarily vested in the executive and congress during such times of war is exactly what you and those like you are seeking to change. It is not I that is out of step with the American legal tradition during times of war, it is you and those like you that think our enemies just need some nice herb tea and a time out and have or should have every right of an ordinary citizen involved in run of the mill criminal activity that is out of the mainstream American legal tradition.

If you can't tell the difference between Don Rumsfeld and Hitler or President Bush and Hitler, than you should just be quiet and adjust your meds. If Rumsfeld or Bush tried to start randomly imprisoning persons for no particular reason, then Congress, the Courts, and most importantly the moral majority in this country would put a stop to it immediately. The fact that you and those like you seem to have lost the ability to distinguish between good and evil, us and them, Rumsfeld and Hitler is likely a product of an amoral/purely relativistic "education" designed to foster hatred and distrust of our country, true freedom, and the moral imperative to protect our country and its judeo=christian culture from its lethal enemies, OK?

Says the "Dog"
9.30.2006 6:14pm