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Mukasey, Waterboarding, and Public Opinion:
Marty Lederman has an interesting post at Balkinization about waterboarding, Michael Mukasey's testimony, and the reaction of Senate Democrats and Republicans to it. An excerpt:
The real explanation [for why Mukasey did not condemn waterboarding] lies in . . . Mukasey's revealing testimony that "there are people who are using coercive techniques and who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial—I don't think it would be responsible of me to do that." Mukasey can't say that waterboarding is unlawful because OLC has already opined — several times over, apparently — that it's not, and CIA operatives have acted in reliance upon that advice. Mukasey understandably is reluctant to publicly accuse those for whom he is about to work of being war criminals.
  I haven't followed these issues closely, so I don't feel I have much informed to say about them, but did have one meta-level comment about the issue. As far as I can tell, the best poll on public attitudes towards torture generally is one provided by the Pew Research Center for the People & the Press. The question they ask is this: "Do you think the use of torture against suspected terrorists in order to gain important information can often be justified, sometimes be justified, rarely be justified, or never be justified?"

  Here's the latest set of results from about 10 months ago:
Never Justified: 29%
Rarely Justified: 25%
Sometimes Justified: 31%
Often Justified: 12%
Unsure: 3%
  I gather these results help explain why some politicians are not condemning techniques like waterboarding: Whether or not such techniques technically count as "torture," a significant majority of the public in the United States doesn't want a categorical ban on torture. Now just to be extra clear, I am not claiming and could not possibly claim that these poll results shed any light on the legality or the morality of any of these techniques nor whether they are better banned or permitted as a matter of policy. A public opinion poll is only a public opinion poll. But I think the poll numbers provide a helpful context to understand the public debate on the issue.

  A prospective note about comments: In my experience, this issue draws out more anger and frustration than any other issue within the usual range of blogging topics here at the VC. Despite that — or perhaps because of that — I think it's unusually important for commenters to be civil and respectful. To enforce that norm, I'll be unusually ready to delete comments that I think cross the line.

  UPDATE: My apologies for an earlier transcription error -- the "rarely justified" numbers in the poll are 25%, not 35%,
byomtov (mail):
Mukasey can't say that waterboarding is unlawful because OLC has already opined -- several times over, apparently -- that it's not, and CIA operatives have acted in reliance upon that advice. Mukasey understandably is reluctant to publicly accuse those for whom he is about to work of being war criminals.

I object to the use of the word "can't." Mukasey may be "understandably reluctant" to accuse people of torture, but that doesn't prevent him from doing so if he thinks that they are in fact torturers. It is not a question of being congenial, but of being honest.
10.23.2007 10:02pm
CheckEnclosed (mail):
As always, poll results depend on how a question is asked. Suppose you asked: "Do you think the use of torture by America's enemies against our soldiers, civilians or spies in order to obtain important information is never justified, rarely justifed, ... etc?"
Then you could ask whether people thought torure by American should be evaluated based on diffrent standards.

On a slight tangent, it seems that many people who argue that torture can sometimes be justified seek to rule out soldiers from those who can be tortured. Yet the average private soldier is a great candidate for effective torture: no army will change its plans just because a private soldier has been captured, low level soldiers often receive very fresh and pertinent information, the likelyhood of saving lives on the torturing party's side is high, and most soldiers are far less prepared than fanatical terrorists to resist torture.

A harder question is: if we ever really did have a drug that was safe when administered in effective doses AND actually was a "truth serum", when would we be justified in forcing it on someone we thought was a bad guy?
10.23.2007 10:04pm
Houston Lawyer:
It's a bit of a red herring to ask how our soldiers should be treated. The enemy we are fighting now engages in real torture and seems to have a zeal for it. They torture and kill for the intimidation that it affords.

We have our own standards that are not dependent on the standards of our enemies. It is our own standards that matter.
10.23.2007 10:12pm
sjalterego (mail):
I certainly second Byomtov's sentiments above. If it is illegal, it is illegal whether Mukasy says it is or not. He may have control over whether to prosecute but he can't really change whether it is legal or not.

In fact, a responsible lawyer's job is to clearly explain the law, particularly in cases where it is unclear or people obviously don't understand it or are relying on false/improper understanding of the law.

Mukasey's argument that "and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial—I don't think it would be responsible of me to do that" is entirely backward. He owes it to them, to future "torturers" and to the public to explicitly explain what is and what is not illegal torture.

This is all presuming that he is going into this in good faith and is not simply going to provide a helpful opinion of counsel that the administration and torturer's can claim to rely on in defending that they did not knowingly violate the law.

In addition I would like to add a more nuanced reading of the poll data than the argument that they indicate "a significant majority of the public in the United States doesn't want a categorical ban on torture."

I am actually one of those who would answer that torture can rarely be justified. However, that doesn't stop me from wanting a complete ban on torture and I don't think that is inconsistent.

IF I absolutely knew that a bomb was going to go off in a crowded public place and knew that a particular person had information that would allow me to safely prevent the explosion I think that torture could be "justified" in those circumstances. However, those situations rarely if ever occur and as circumstances have borne out, once you allow and bureaucratize torture it just expands and corrupts everything it touches.

I don't trust any government and certainly not this president to make this decision and I would rather suffer the results arising from a refusal to torture than the results we currently have.
10.23.2007 10:14pm
Richard Aubrey (mail):
Check. No. The issue is not solely about torture. It's about hobbling the US. Our opponents are always honorable or innocent. And we deserve it.

The issue of waterboarding as torture is complicated. It apparently works, practically all the time. It is not physically painful, in that it does not spike the pain receptors. It does not result in any injury at all. It may be a matter of a different set of reflexes than those associated with pain and other forms of physical distress. It is enormously frightening and horribly uncomfortable. It is so scary that even the threat of a repeat is usually sufficient, or unnecessary.

It has all the results torture is supposed to get, without any of the actual attributes save for fear and discomfort. Fear and discomfort are bad enough, but for most people, pain receptors and injury must be involved to satisfy any definition of torture.

So I can see waterboarding being in a different category. What you make of that category is something else, but it ought to be considered when wondering why one thing is allowed and another isn't.

I disagree about the private soldier's info. It may be fresh, but like fish, fresh is temporary. It is also limited in scope. Lastly, whatever he tells you might be deliberately wrong instead of simply obsolete. In either case, he's a dead man if he's not right, and probably if he is, too. The only way to test him is to go into a fight with his information guiding you. So if he's wrong, for whatever reason, you won't be around to punish him. Or he can think the odds are pretty high.

Then there's the info flow. My father's unit caught a German who pointed vaguely to the south and said something about artillery and tanks. Nothing they could do about it, so they sent him back. Never heard what happened to him, but the Ardennes Offensive later that week was a surprise. Among other things, there are always tanks and artillery around. Thanks for nothing, Helmut. Got anything we can use?

There is a theory that the Germans changed their plans in 1940 because a copy of the plan fell into Allied hands. So they did Plan B, which, unfortunately, fell on the Allies' Team B. Had they not changed their plans, they'd have hit the A Team and everything afterwards might have been different. That's Big Op planning. What the average soldier knows is pretty little. And there are always deception ops, just in case.
10.23.2007 10:25pm
Ben P (mail):
We had a really interesting panel discussion here last year on Torture and Democracy. Among those in the panel were Alberto Mora, William Howard Taft IV, and Lord Baron Robin Butler.


One of the questions regarded torture in the "ticking nuclear bomb" scenario. I thought Butler's response was the most interesting. He said that torture is illegal and remains illegal, but that much like self defense, the circumstances can be very important if someone is accused of torturing someone.
10.23.2007 10:28pm
George Weiss (mail):
my only thought:

i think it heavily matters WHO we a torturing..should toruture be limited to forign terrirists..or also domestic terrists that have ties oversees.

morally it may not make a diffrence

but if we are conernd about the direction that troutre takes us in..and indeeed...many of the anti torture people are anti torture not becuase they simpatrhise with terrirsts or are really morally opposed to torutre in all cases (see previous post from sjalterego)

recent jurisprudence (hamdi v rumsfeld and the 4th cir decision about detaining padilla) have ruled that it is ok to detian a us citizen cought aborad (hamdi) and even a us citzen caught in the US that has ties to terrists oversees (padilla)..

this basically puts our own american citizens in the same legal catagory of other detaineees does it not?

while many people supported the padila and hamdi decisions..and many of those same people support waterboarding...would thsoe people support waterboarding padilla or hamdi? it probably would withstadn an 8th amendment challange becuase it is not punishment but a way of getting information.


remember that the main problem with hamdi and padilla is that since they are american citizens they have enhanced constitutional rights that others dont have...(notably in hamdi they have the right to a neutural fact finder...even if there rights or rules of evidence of that fact finder dont conform to consittuional norms)

but if we use the hamdi rule (or even more problematic a padilla like rule to start detaining US citizens indefinitly and then COMBINE that with waterboarding..how close are we coming to essentially doing away with every basic right...for good....

remeber that its easy to imagine hamdi and padilla as people who deserve ot be locked up and otrutred becuase we sort of know they are tied ot terrirsts...but the RULE is the real issue....preventing someone who is NOT invovled...who only gets a neutrla fact fidner with paritial conittuinal protectiosn at the hearing..from being indefinitly deatined..and then waterbaorded...
10.23.2007 10:35pm
scote (mail):
[Deleted by OK: Scote, can you make the same point without the harsh sarcasm?]
10.23.2007 10:41pm
GeoffBro (mail):
"It apparently works, practically all the time."

Richard, it depends on what you mean by "works." It's true that waterboarding almost always makes the tortured party speak. But having him tell you what you want to hear and having him provide useful, accurate information are two very different things.

The problem with most torture isn't that most people will remain steadfast in the face of great pain or discomfort. It's that some people will, and the remainder will eventually tell you whatever they think will make the pain or discomfort stop. Waterboard someone long enough, and they may gladly confess to a terrorist attack. But are they terrorists? It's extremely difficult to say.

Additionally, you might compare this to other means of banned interrogation - for example, fake executions. The fact that they don't inflict massive, lasting pain does not necessarily make them more palatable. Finally, as many intelligence and military officials have noted over the years, other interrogation techniques are far more effective.

So let me turn your implied question around: if waterboarding's efficacy is poor, it's unpleasant at best, and there are more humane techniques with results that are as good if not better, why bother doing it at all?
10.23.2007 10:42pm
Nathan Wagner:
Perhaps the most frustrating thing about this business, this late in the game, is that the administration still clings to legalisms as an excuse for its tactics. On any political issue, if you lose in a fair fight democratically - that is, Congress enacts a law contrary to your wishes - your anger level is usually far less than if the other side simply does what it wants with scanty legal cover. Marty Lederman is bothered about the MCA because it modifies our treaty obligations in a way he does not like. But he is - I don't think enraged would be too strong a term - at the administration's evasive legalisms.

Since part of the effectiveness of waterboarding is to make its subject believe that he is in greater physical danger than is in fact the case, it may originally have been reasonable (from a policy rather than legal perspective) not to seek congressional authorization for it. Public disclosure, even in generalities, could potentially have lessened its effectiveness.

Now, however, the world knows all about waterboarding, and that excuse no longer exists. The issue has become a matter of public debate and concern. If the administration believes waterboarding necessary to national security, it ought to make the case publicly and lay before Congress a draft law to authorize it. Legalisms ought to have no place in a debate such as this.

So here's the thing. The administration and the CIA have both asserted that this and other such techniques have been effective. Reportedly, this is what broke KSM, al Qaeda's chief of operations. That was, what, four years ago? Surely some of the information KSM purportedly coughed up can now be revealed without damage to the ongoing fight against al Qaeda. If waterboarding is indeed necessary to national security, the administration could set things out: "KSM broke only under waterboarding. He revealed this detail about that operation, and we successfully rolled it up. Without employing this tactic, we would not have been able to do so." If the administration can make such an argument, it would be very powerful in terms of swaying public opinion. I, for one, want to see it - if it can be made.

Enough with evasive legalisms, let's settle this thing where it ought to be settled - in the court of public opinion and by the votes of our elected representatives.
10.23.2007 10:51pm
Brian Macker (mail) (www):
Waterboarding is torture and we shouldn't be doing it. What especially irks me is the word games the administration is playing here. At least be honest if you are going to use mild torture.
10.23.2007 11:04pm
GV_:
If one of our soldiers was captured on the battlefield and he was waterboarded, would anyone for a hesitate for a second in saying the soldier was tortured? If that soldier was interviewed on Larry King and said he was tortured, did he really misspeak? If any of you were subject to this treatment, would you for a second hesitate in saying this is torture – i.e., that (at the least) your tormenters intentionally inflected you with severe mental suffering?
10.23.2007 11:20pm
more meta-commentary:
The poll you cite refers to "the use of torture against suspected terrorists in order to gain important information." So, it presumes that torture is a practice that works "to gain important information." But that premise is extremely questionable. Much more often throughout history, torture has been used to obtain confessions sought by authority, not to get at the truth. (Read up on Conquest's history of the Soviet show trials, for example. Those poor people eventually confessed to whatever their interrogators wanted them to, no matter how ludicrous. Unfortunately, as recent commentators have shown, you can draw a straight line between the Soviet interrogation practices that our soldiers trained to withstand during the Cold War, and the current "enhanced interrogation" techniques used by the CIA and blessed by the Justice Department during the current administration.) What do you think the polls would show if this misleading premise about the inherent effectiveness of torture were removed?

At least until this Administration came to office, there was a broad political consensus against torture. That's why the Senate ratified the Convention Against Torture unanimously -- with Jesse Helms running the show in the Foreign Relations Committee at the time! Shouldn't we insist now that the leading law enforcement official in the nation be able to articulate a coherent position on torture -- which necessarily includes the ability to apply a definition of the term "torture" to an established set of facts, such as those set forth in the Judiciary Democrats' letter on waterboarding -- without regard to what may or may not be shifts in current public attitudes?

Isn't the least we should ask of the man about to become our attorney general?
10.23.2007 11:23pm
OrinKerr:
More meta,

I tend to think the poll question is most naturally read to ask about torture "with the goal of gaining important information" rather than "in a way that does gain important information." Although I agree it would be a better question if that were more explicit to avoid confusion.
10.23.2007 11:34pm
Simon (391563) (mail) (www):
to follow up on GV's point:

The US, under the Convention Against Torture, is not supposed to deport people to countries where it is more likely than not that they will be, well, tortured.

Suppose you're an immigration judge and are faced with a non-resident alien otherwise subject to removal whose only claim rests on having successfully proved that he is more likely than not to be subject to waterboarding if returned to his home country. What result?

Does it matter if:

a. it's likely to happen more than once?
b. the country in question is Castro's Cuba?
c. the country in question is Pinochet's Chile?

As for the efficacy of torture or threats of torture as a means of ascertaining truth, I might recommend commentators review a recent 2nd Circuit decision that has gone unfortunately unremarked upon in these environs.
10.23.2007 11:34pm
Katherine (mail):
[Deleted by OK on civility grounds. Katherine, no need to accuse me of being a liar.]
10.23.2007 11:53pm
Katherine (mail):
[Deleted by OK on relevance grounds.]
10.23.2007 11:54pm
JB:
I agree with Nathan Wagner. If waterboarding worked, i.e. if it has in the past been used on someone who then coughed up useful and correct information he had been withholding, then the public should know.

The fact that there are no such stories with any degree of specificity suggests to me that (a) the people who have been waterboarded knew nothing, (b) they spouted useless misinformation just to make it stop, or (c) both.
10.23.2007 11:58pm
Markusha (mail):
Orin,

I respectfully disagree with your characterization of the poll being that most people do not want a categorical ban on torture. That people think that torture may be sometimes justified is different from people thinking that there should not be a categorical ban. Many people may think that DESPITE categorical ban, torture may be justified in, say, "ticking bomb" scenario (something exceedingly unlikely and hypothetical). Therefore, people may think that there should be an absolute legal ban of torture, but in extreme circumstances one may have to violate this ban and still be justified.
10.23.2007 11:59pm
Christopher M (mail):
Fear and discomfort are bad enough, but for most people, pain receptors and injury must be involved to satisfy any definition of torture.

I'm sure physical pain is the central, quintessential case of torture for most people. But who, if they actually thought about it, would honestly deny that, say, Chinese Water Torture is torture? It's right there in the name, for goodness' sake. But it doesn't involve "pain receptors."

I mean, honestly. Let's say we anaesthetized people but left them conscious, then cut open their bodies and made them watch while we poked around in their inner organs? That wouldn't be torture?

It seems like the difference with waterboarding is that most people just figure it can't really be that bad. Like, it's just like taking a shower upside down, right? Even I don't quite get how it could be all that awful. But apparently it is. So it's torture.
10.23.2007 11:59pm
Richard Aubrey (mail):
Geoffbro. The idea that the torture victim will tell you what he thinks the interrogator wants to hear is obvious. It doesn't help with historical examples where torture has worked. What happened there? What happened there, in part, is asking questions to which you know the answer and punishing--even more--falsehoods. So the victim doesn't know what the interrogator knows, but knows he won't fall for just anything. Another way to make it work is getting small pieces which fit other small pieces.
All the theoretical reasons why torture doesn't work are wishful thinking, for obvious reasons, which don't fit the actual reality of when it's been used. Not that it always works, and sometimes, as in the Inquisition, you want a false confession anyway, so it hardly matters. But the hard guys of nation states in the last few millenia have actually made it work for real. So we're at one of those points where we have to dismiss reality because it doesn't fit the theory.

I'd put waterboarding in another category and then talk about forbidding it. This is niggling and hair-splitting, but this is a lawyers' board so....backatcha.

As I say, this is a partisan issue, anyway. Google up Menchaca and Tucker to see how much anybody actually cares when it's some of our guys. Double points for anybody who says, "Who?"
10.24.2007 12:11am
OrinKerr:
Markusha,

I tend to think the word "categorical" means that there are no exceptions.
10.24.2007 12:14am
Smokey:
"Enough with evasive legalisms..."
I wholeheartedly agree. So, let's see an exact definition of 'torture.'

Forget all the red-herring arguments about whether the information received is accurate; that applies to all information received from the enemy, voluntary or otherwise.

As Richard Aubrey stated above:
It is not physically painful, in that it does not spike the pain receptors. It does not result in any injury at all.
That isn't 'torture,' that is temporary discomfort. People in the County Jail are subjected to temporary discomfort all the time. And it's a lot closer to 'torture' when you voluntarily go to the dentist.

[The remainder of the post deleted by OK on civility grounds.]
10.24.2007 12:17am
Markusha (mail):
Orin,

The fact that there's a categorical ban doesn't mean that there may not be instances when it may be appropriate to violate the categorical ban. Even if we assume that torture may be sometimes justified, it doesn't mean there should not be a categorical ban. Let there be a categorical ban and if one violates it, it would be at his/her own peril.

[OK comments: Markusha, I think we're just disgreeing on the meaning of the word "categorical." Looking at the definition provided at dictionary.com, I am using the first definition, "without exceptions or conditions; absolute; unqualified and unconditional," You are using the third definition, "pertaining to a category."]
10.24.2007 12:18am
scote (mail):

[Deleted by OK: Scote, can you make the same point without the harsh sarcasm?]


Frankly, I thought that condoning waterboarding merited harsh and sarcastic criticism. I can't condemn such condondation too harshly.

The non sarcastic point in the deleted comment was that Mukasey's point was an untenable one. He said:


"there are people who are using coercive techniques and who are being authorized to use coercive techniques, and for me to say something that is going to put their careers or freedom at risk simply because I want to be congenial—I don't think it would be responsible of me to do that."


In this quote Mukasey shows that he errs on the side of protecting tortures rather than erring on the side of protecting human rights. He is being congenial to waterboarders and condoning the practice. He does not want to put the careers or freedom of torturers at risk and has no apparent concern for the secretly held, secretly tourtured detainees. Such a position clearly demonstrates that he is unsuitable for the job of AG.
10.24.2007 12:26am
BChurch (mail):
Prof. Kerr,

Whatever effect public opinion polls may have on politicians, Mukasey is not a politician; why should he pay any attention to polls at all, especially in the context of answering a question of law in a hearing to evaluate him as the next AG?

Maybe your point is only meant to be tangentially related to Mukasey's answer-- if so, sorry in advance.
10.24.2007 12:28am
OrinKerr:
BChurch,

Mukasey is not a politician; he should not pay any attention to public opinion polls. I was referring to the GOP Senators, primarily.
10.24.2007 12:30am
OrinKerr:
Thanks for reposting, Scote.
10.24.2007 12:31am
Richard Aubrey (mail):
How about this for looking at waterboarding:
One year later: You were subjected to waterboarding once and told all.

You were subjected to various mutilations for which there are no useful prostheses and told all.

How would you be, one year on?
10.24.2007 12:32am
Markusha (mail):
Orin, thanks for your reply. But no, I am using the same definition as you, the first one. What I am saying is that even if there is a total absolute ban of torture in the law, one may be justified in violating this total and absolute ban in extreme circumstances. BUT it does not mean that there should be any exceptions in the law; it means that if one violates this absolute ban, he is willing to face the consequences of the violation.
10.24.2007 12:34am
MarkField (mail):
25 comments and nobody has noticed that the poll results add up to more than 100%? The "rarely justified" category should be 25% rather than 35%.

I don't think public opinion polls drive this topic on either side. I think there's a real and fundamental difference between peoples' attitudes. The polls reflect that difference, but they don't drive it.


a significant majority of the public in the United States doesn't want a categorical ban on torture.


Of course, we DID ban torture, categorically, when we adopted the CAT. Even the Administration appears to accept this moral frame -- Bush regularly says that "we don't torture". Of course, that's an outright ... well, I'll try to be polite and just say that it's a misrepresentation. I guess that's the tribute hypocrisy pays to virtue.
10.24.2007 12:43am
Mr. X (www):
Prof. Kerr,
Markusha clarified his position and I agree. One can favor a categorical ban on torture and still come up with a hypothetical where it could be "rarely justified." You seem to be thinking only of affirmative defenses, not mitigating or extenuating circumstances.

If you have an actual ticking time bomb situation, wouldn't you violate a categorical ban on torture? You may feel that this is one of the "rarely justified" times. That's fine, but if you end up torturing someone and can't present sufficient evidence that the mitigating circumstances are so compelling that you should get off, I want you to be severely punished (say, 25 years to life imprisonment) for committing a morally repugnant and reprehensible crime.
10.24.2007 12:46am
JB:
Richard Aubrey: We've been at war for 6 years now. Surely there are some success stories that can be trotted out, of people who we tortured/waterboarded/whatever in that manner and thus saved American lives/accomplished crucial objectives.

I don't doubt that torture could work under the conditions you describe. But has it?

An argument can be made for torturing people when it's absolutely necessary. We've been torturing people for a while--surely there's at least one case where it was clearly necessary?
10.24.2007 12:49am
Eli Rabett (www):
There was an interesting case decided about a year ago in Frankfurt Germany. Some creep had kidnapped a kid and killed him. The police caught the kidnapper but thought the child was still alive so the threatened to beat up the kidnapper until he told them where the kid was (they may have actually beat him, I don't remember the details). The kidnapper told them, but of course the child was already dead.

The upshot was that the state could not use any evidence from the statements of the kidnapper in court. He was convicted of murder and kidnapping on the evidence anyhow, and the policeman was fired and tried. As I remember the outcome of that case, he was found guilty, but scooter libbied out of jail.

Now this is, I think the proper outcome to the ticking bomb issue. Anyone have more details?
10.24.2007 12:55am
OrinKerr:
Markusha, I think you misinterpreted my post: I referred to "a categorical ban on torture," not a "categorical ban on torture as a matter of formal written law." That is, I was referring to a ban on a particular practice, not a particular state of the law.
10.24.2007 12:58am
Anderson (mail):
I think Prof. Kerr is correct in noting the muddled moral sense of Americans on the subject of torture -- just as we're muddled on abortion, where the net result seems to amount to "don't make it easy for slugs like my neighbor to get, but don't make it impossible for me or my daughter to get, either."

So long at *I'm* not being tortured, it's a luxury to decide that other people shouldn't be tortured.

But I don't grasp the connection of Prof. Kerr's observation with Prof. Lederman's guess about Mukasey, which I thought was spot-on. If waterboarding is torture, then it becomes difficult to explain why those who authorized and performed waterboardings are not torturers. And as we've seen, not even Cheney is eager to be publicly identified as a torturer.
10.24.2007 1:01am
OrinKerr:
Anderson,

I was just making an observation that came to mind after reading Marty's post -- and in particular his frustrated remark about how no GOP Senators joined the letter.
10.24.2007 1:04am
Fingerprint File (mail):

But I don't grasp the connection of Prof. Kerr's observation with Prof. Lederman's guess about Mukasey, which I thought was spot-on.


My take was that Prof. Kerr was trying to draw a connection between the poll and the fact that Republican senators did not sign the letter to Mukasey. Of course this raises the question of why only Republican Senators would be concerned with public opinion polls.
10.24.2007 1:08am
Markusha (mail):
Orin, I see your point. I understood "ban" to mean "proscribed by the written law"; I guess I am not sure how else can something be banned if not by written law.

I agree with you on the substance: America's feelings on torture are muddled and that may explain Mukasey's reluctance to condemn waterboarding.
10.24.2007 1:15am
Richard Aubrey (mail):
JB.
I presume there are. But the political climate certainly wouldn't accept success as any kind of excuse, now, would it?
As if the admin is stupid enough to give you something to work on.
And, for good reasons or not, sources and methods need to be classified.
There are stories, probably true, that Churchill allowed the Luftwaffe to bomb Coventry without taking the slightest precautions with the info provided by Enigma. Didn't want the Germans to start wondering.
And if they knew, say, a flight of Germans was coming, they'd give orders for a destroyer or recon aircraft to be in the area to provide a plausible reason for the fact that the response seemed to imply some kind of warning.
We don't want people to know what we know. We may have use for it some time later, and allowing the bad guys to know what to change is a bad idea.

But you know that, don't you?

and "conditions you describe"? You think that's some kind of rare situation? Those are the circumstances every interrogator tries to arrange, whether using torture or not.

Has it worked? See the resistance networks vs. the Gestapo.
10.24.2007 1:16am
Anderson (mail):
I was just making an observation that came to mind after reading Marty's post -- and in particular his frustrated remark about how no GOP Senators joined the letter.

You might agree with Matt Yglesias, then:

I get the sense that Republicans think that while Iraq may now be a bad issue for their party, that things like unconstitutional surveillance, arbitrary and indefinite detention, and routine torture are big-time winning issues for the GOP. So they like the hawkish posture, even if Iraq's been a problem. That's how it seems to me.

Beyond that, I can also say for a fact that that's how it seems to an awful lot of Democrats. Talk to people on the Hill or people involved in messaging, and there's just no confidence that they could win a big high-profile standoff with Bush on pretty much any issue related to terrorism. There's a critical margin of members who just won't back any position that can't also attract substantial Republican backing to provide "cover."


Now, I happen to think the Repubs and Dems are both wrong, and that the poll numbers you cite (as corrected by Mark Field) are fairly encouraging, given that the Dems have done NOTHING to move the public on this issue. A Reaganesque "Torture - It's Just Not What America Does" message would work pretty well, is my hunch. (Commenters who object that there's a record of American torture stretching back to the Phoenix program &beyond are missing my point; I'm talking politics here.)

Leaving me to infer that the Dems either are clueless, or just don't care for the most part. Both are plausible.
10.24.2007 1:17am
NickM (mail) (www):
The public statements of the attorney general could be used to eliminate qualified immunity for U.S. government employees ordered to undertake these actions in the future, as well as possibly estopping the U.S. government from arguing to a court that these actions do not violate the ban on torture. That's not a responsible action for a prospective attorney general to take.

I'm still waiting for the Democrats in either house to push legislation to specifically ban waterboarding. I think it would pass with veto-proof margins. I'd vote for it if I were in Congress. Other techniques that have been criticized are a different story - especially those that rely on fatigue rather than intense fearfor their effectiveness (think forced standing) - fatigue is also more calculated to overcome the brain's ability to remember and repeat lies.

Nick
10.24.2007 2:00am
DG:
Most Americans think mild torture should be allowed in truly exceptional circumstances. That means not something you routinely get when checking into gitmo, but allowed for folks like KSM or in the ticking timebomb situation. And yes, it does occur. The Israelis have this happen once in a while when a suicide bomber's confederates are captured but the bomber is at large and still "intact".

Its not about eliciting confessions. I realize most here are lawyers, so they must put everything into their frame of reference. Torture, mild or not, is quite effective in getting information out of folks, if a) they have it and b) you know they have it, and of course c) you have a way to confirm it before acting on it. Stuff like waterboarding is both fast and effective. Its even relatively humane, because it doesn't last long - no one can hold out even 5 minutes.

How should it be authorized? How about FISA court or equivalent on the front end, then a board of inquiry on the back end, along with a removal from duty, at least temporarily? If the board of inquiry determines the info to the authorizer was forged, you get sent to the grand jury.
10.24.2007 2:10am
scote (mail):

I'm still waiting for the Democrats in either house to push legislation to specifically ban waterboarding.


I can't see how that would help. The dems ban torture and the the Administration simply claims that anything short of the pain of death or organ failure isn't torture. Then the Administration repudiates that interpretation and secretly redefines cruel treatment. There is no reason to think the Administration wouldn't simply redefine waterbording. And all of that is still window dressing since Mukasey wouldn't repudiate the Administration's position that it can ignore any and all laws by invoking the president's "Commander in Chief" duties--the mistaken Unitary Dictator theory.
10.24.2007 2:14am
Dan Simon (mail) (www):
Now just to be extra clear, I am not claiming and could not possibly claim that these poll results shed any light on the legality or the morality of any of these techniques nor whether they are better banned or permitted as a matter of policy.

Okay, Orin--I'll do it for you. If a solid majority of the public across all social classes were strongly opposed to torture under any circumstances, then torture would undoubtedly be illegal, and few Americans would defend its morality or advocate its wisdom as public policy. Conversely, if a solid majority of the public across all social classes were strongly in favor of allowing torture under certain circumstancs, then permitted forms of torture and their rules of use would be written clearly and explicitly into the law, and few Americans would doubt its morality or usefulness.

The problem is that while a solid majority of Americans do believe that torture is appropriate in at least certain rare circumstances, the elite segments of society, in politics, the law, the press, academia, and other influential fields, are disproportionately opposed to torture. Moreover, they tend to view their position as a demonstration of their moral superiority, and hence a validation of their elite status. In many cases, this snobbery leads to extreme positions, such as deploring anything less than cushy hospitality for captured terrorists, and morally equating American government officials who defend the rare use of harsh interrogation methods with the terrorist organizations from whose members they seek life-saving information.

An obvious analogy is capital punishment. A solid majority of the public considers it appropriate for brutal murderers. But not only do America's (and many other countries') elites disproportionately oppose it, but they overwhelmingly do so for reasons that demonstrate general revulsion at any harsh punisment of anyone, however heinous their crimes, and sneering contempt for those barbaric plebeians who consider it regrettably necessary in the case of hardened criminals.

Mind you, many of those same people who vigorously defend the rights of convicted criminals to all manner of creature comforts, will also joke crudely about the rape that awaits them at the hands of burly fellow prisoners. That is, their concern is chiefly for their own sense of superior righteousness, not for the actual well-being of those they pretend to defend. Likewise, those who insist that torture must be illegal under all circumstances typically respond to the "ticking bomb" scenario by invoking some poor low-level interrogator who should go ahead and do what has to be done, then take the fall and accept the punishment so that America's sanctimonious Pecksniffs can sleep soundly in their cocoon of moral superiority.

Sadly, I strongly suspect that the results in the two cases will be the same: torture of terrorists with potentially valuable information will be carried out just as the punishment of criminals is carried out--by arms-length proxies acting "illegally" with a wink and a nod. They will be far more brutal, less selective and ultimately less effective than the sanctioned alternative would be, but the right of America's elites to incessant moral preening will be preserved.
10.24.2007 2:37am
Latinist:
I really don't think that poll would be of much value for anyone worried about elections and public opinion. The real issue at stake politically isn't whether torture should be allowed "rarely" or "sometimes," but rather "less than it has been under the Bush administration," "more than it has. . . " or "as much as it has. . . ." Now that would be a useful poll. I suspect that some people who answered "rarely" to the actual poll would give each of my three hypothetical answers, and I'd really like to know what the proportions would be.
10.24.2007 2:40am
CheckEnclosed (mail):
I realize that many on the right are moral relativists whose situational ethics allow for torture in the proper circumstances. Who knew that act utilitarianism was so popular?
But it is wrong, whether it is sometimes effective or not. Whether it is used by good guys against people they can call terrorists or not. No one who has expertise as a torturer should be tolerated, much less employed, bu this country.
10.24.2007 4:27am
David Sucher (mail) (www):
I am more intrigued by what I think is the very odd way you frame the question than in the issue itself: "...a significant majority of the public in the United States doesn't want a categorical ban on torture."

Wow. Getting such a rich conclusion out of such lean facts.
10.24.2007 4:43am
Murmur:
[Deleted by OK on civility grounds.]
10.24.2007 6:45am
Simon (391563) (mail) (www):
[Deleted by OK on civility grounds]
10.24.2007 7:57am
Richard Aubrey (mail):
[Deleted by OK on civility grounds]
10.24.2007 8:57am
Murmur:
[Deleted by OK on civility grounds]
10.24.2007 9:35am
GV_:
Dan Simon said: If a solid majority of the public across all social classes were strongly opposed to torture under any circumstances, then torture would undoubtedly be illegal . . .

*sigh* But it is already illegal! Somehow that keeps getting lost in the shuffle.
10.24.2007 9:38am
Just Some Guy (mail):
This being a forum of lawyers, it tends to reflect a bias lawyers tend to have: the belief that one can draw bright, thin lines of right and wrong, legal and illegal, etc. The poll is interesting because it reflects the wisdom of the crowd, which as a whole does not respect such clear delineations. Is torture good or legal? No. Is it justifiable if it could almost certainly save many lives? Alas, yes.
10.24.2007 9:52am
Simon (391563) (mail) (www):
[Deleted by OK on civility grounds]
10.24.2007 10:08am
OrinKerr:
David Sucher,

I don't understand your position. Could you articulate the argument for why you think the facts are "lean" but the conclusion "rich"?
10.24.2007 10:08am
hey (mail):
[Deleted by OK on civility grounds]
10.24.2007 10:09am
OrinKerr:
Just Some Guy writes:
This being a forum of lawyers, it tends to reflect a bias lawyers tend to have: the belief that one can draw bright, thin lines of right and wrong, legal and illegal, etc.
Actually, I think if lawyers have any bias, it's against this: legal training is largely about the often-unrecognized difficulty of drawing bright, thin lines of right and wrong, legal and illegal. As Bill Clinton put it in his very legalistic way, lawyers realize that the law often depends on what the meaning of "is" is. Rather, the distinction here is the more basic one of law versus policy, I think.
10.24.2007 10:12am
Anderson (mail):
DG: Torture, mild or not, is quite effective in getting information out of folks, if a) they have it and b) you know they have it, and of course c) you have a way to confirm it before acting on it.

And this constellation occurs ... when?

Allow me to add spice to my conversation:

No one ever said that torture won't sometimes produce good intel. Sure it will. If I torture you and demand your name, you'll tell me your freakin' name.

The issue is, whether torture is superior to other methods in producing good intel, and whether torture has aspects that make it inferior. It's not superior -- you can get people to talk just fine without torturing them, if you show them some respect and behave cannily. (Look up Mark Bowden's article on how we nailed Zarqawi by cleverly interrogating our subjects.)

And torture has obvious bad effects I've described. If I'm not happy that you say your name is Wayne, and I want you to confess you're Batman, then I'll keep torturing you -- until you admit it.


Historically, who's famous for using torture? The Inquisition. The witch-hunters. The KGB. They wanted confessions. That's why the European "justice system" until the Renaissance used torture -- because the only satisfactory way to prove guilt was to get a confession.

Given the hordes of professional interrogators who disavow torture, and the paucity of support for torture's alleged efficacy, I'm left to conclude that the commenters here who support torture, do so because they like it.

Why? Makes them feel tougher than the pantywaist liberals, I suspect.
10.24.2007 10:24am
Tim Dowling (mail):
"Our enemies will do anything and everything to our soldiers and citizens, no matter what we say."

As Senator McCain has told us many times, it's not about them. It's about us.
10.24.2007 10:34am
ejo:
still no definitions of "torture" being offered. standing? slapping? yelling? cold rooms? or is it just waterboarding? insults to Islam? fake menstrual blood to a muslim? no one wants to be the one to set the line. no one wants to acknowledge the simple fact that behavior that runs the gamut from yelling to cutting off of body parts have been effective for thousands of years. why, for instance, did we not have very effective human intelligence in Iraq and, now apparently, in Iran? might the threat that, if caught, you would do more than a short prison sentence cause a change of heart?
10.24.2007 10:39am
Tim Dowling (mail):
Regarding the polling data by Pew (whose work I generally find very helpful), it's worth noting that the question expressly references a potential benefit (gaining importnat information), but makes no mention of potential harms (unreliable information, increased risk that torture might be used against our soldiers, corruption of our souls, etc.). I wonder if the data would change if the question explicitly referenced the concerns expressed by our military leaders regarding the use of torture.
10.24.2007 10:39am
Kurmudge (mail):
EJO says it right. We great unwashed proles out here tune out of the elite debates on this topic because most who comment throw around words like "torture" in a way that defines anything other than offering coffee and pleading for information as violations of anti-torture conventions. We aren't going to trust any of the opinions until we get precise definitions of what the word means.

And I don't know too many people on the streets of flyover land who would seriously categorize waterboarding as "torture" if given a good description. Go watch the Navy flyer training in "An Officer and a Gentleman". They were all tortured.
10.24.2007 10:59am
ejo:
well, we know what happens to our soldiers when captured by our enemies-they are killed. unfortunately, we have elevated the tactics of our enemies (hiding behind civilians, not wearing uniforms, etc) to the point where we encourage such conduct against our military. this is just a further example of how, with our concern about our "soul", we are building a future where the tactics of our enemy will be the norm, not the exception.
10.24.2007 11:01am
Bottomfish (mail):
According to one source (WSJ editorial of 10/9/07), waterboarding was successfully employed in the interrogation of Abu Zebaydah and Khalid Sheikh Mohammed. According to another (Vanity Fair 7/17/07), it was not used. I have more confidence in WSJ than Vanity Fair.

In any case, the recollections of interrogators of German soldiers in World War II who say they did not use coercive interrogation do not seem to me to be useful in evaluating the problems in dealing terrorists today, who are Islamist fanatics, not regular army soldiers.
10.24.2007 11:02am
markm (mail):

Richard Aubrey (mail):
Geoffbro. The idea that the torture victim will tell you what he thinks the interrogator wants to hear is obvious. It doesn't help with historical examples where torture has worked. What happened there? What happened there, in part, is asking questions to which you know the answer and punishing--even more--falsehoods. So the victim doesn't know what the interrogator knows, but knows he won't fall for just anything. Another way to make it work is getting small pieces which fit other small pieces.

And what happens if what the interrogator thinks he knows is false? He keeps on until he gets confirmation of the falsehoods.

This doesn't even require torture, just persistence and threats. See the Higazy case cited by Simon above. Under pressure, Higazy eventually came up with three different stories to account for the radio hotel employees claimed they'd found in his room on the 50th floor. All of them were proven false when a pilot came looking for the radio he'd left in his room on the 50th floor.

It's a good thing this mistake only involved wrongful imprisonment and threats against the guy and his family, not something like an interrogator asking about enemy plans with a pre-conceived notion that caused him to reject the truth, get confirmation of a false idea, and send troops into a trap. (Two examples of how strong can such pre-conceived ideas can be: In 1941 Stalin not only rejected intelligence predicting the German invasion, but delayed the response to the actual invasion in the belief that the first reports were fraudulent. In 1944, the German high command - not just Hitler, but a whole committee of generals - held back panzers needed for a counterattack at Normandy because they believed planted intelligence that the real attack would be elsewhere.)

So, we've got one example of a screwed-up coercive interrogation. How many examples of useful intelligence found by American interrogators using waterboarding or other tortures can you cite? "It's secret" isn't an excuse; anything someone we captured four years ago might have known about terrorist sites or plans is long obsolete.
10.24.2007 11:05am
markm (mail):
Oops, make that: Under pressure, Higazy eventually came up with three different stories to account for the radio hotel employees claimed they'd found in his room on the 50th floor. All of them were proven false when a pilot came looking for the radio he'd left in his room on the 51st floor.
10.24.2007 11:09am
Richard Aubrey (mail):
Specifics: The Gestapo vs. the resistance. The Gestapo was not interested in false confessions. Internal security--Inquisition, KGB, et al--may be. Military intel is not.
I presume--absent information which, as it happens, is not available--that interrogators choose torture when other methods fail. Given the absolute impossibility of failure of other methods (see the opponents of torture for examples), that would be rarely.
Eric Haney, ex of Delta Force claims most guys actually want to talk. He's against torture. I don't know who "most guys" are, but when subject to taciturn guards and limited conversation with other prisoners, a quiet room with unlimited coffee and real cream and sugar and an individual who wants to talk to you individually can be extremely effective with "most guys".
Hell, I recall writing in a diary I kept for about a week in Basic that the first time somebody referred to me by name (we'd just gotten our names on our fatigues), I was most impressed. Sneaky technique, calling somebody by his name, when for a week it had been yelling and goheregothere.
It's the other guys who bring up the question.
10.24.2007 11:13am
Constitutional Crisis (mail):
Getting back to the original point, of Mukasey's dance around the torture question, the justification offered rings hollow. Were Mukasey up for nomination to the Court, I could understand his equivocation. But being up for an Executive position, I think he has an obligation to discuss how he would enforce the law. If there's a reason he can't give an opinion on whether waterboarding constitutes torture, he should explain his ignorance and obtain the information he needs in order to give an informed opinion on how he will enforce the laws.

The Attorney General's job is not to say what the law is. It is to enforce the law as he understands it, with due discretion. That he refuses to explain his understanding of the law, or the principles by which he would enforce it, is very problematic in my mind.
10.24.2007 11:15am
Richard Aubrey (mail):
Markm.
I have mentioned before, in other threads, that there is a story that some of the planted intel ref Normandy was done by betraying resistance leaders to the Gestapo, being confident that they would eventually give up the FALSE INFORMATION with which they had been provided which they believed. It would not have worked if torture had not "worked" and would not have been tried if the allies had not expected it to work.

It's interesting that torture has been practiced for millenia to no end whatsoever, don't you think?
In our society, I doubt that anybody who used it, even successfully, is going to be talking about it. It's too disgusting.
10.24.2007 11:31am
Anon1234:
ejo, if you are really curious, torture is readily defined under both U.S. and international law.
10.24.2007 11:33am
X. Trapnel (mail) (www):
Prof. Kerr - I think the point others are making is that the Senators are interested in, and the bone of contention is, whether torture is / ought to be banned as a *legal and institutional* matter. This is quite separate from whether torture might ever be morally justified *in spite of* such a ban; the polling data you cite is more directly applicable to the latter question (although I doubt anyone who answered 'often' would support a legal/institutional ban; there's clearly some correlation).

There's nothing odd about this distinction at all. Rules are always under- and over- inclusive, and the literature on the duty to obey the law in the legal philosophy literature consistently characterizes such a duty as merely prima facie, subject perhaps to being overridden by particular unusual considerations. See the SEP article on Torture and on Political Obligation.
10.24.2007 11:33am
ejo:
all the arguments about false statements can be made for any form of interrogation, be it simply talking or cutting off of ears. are the same techniques effective with everyone-we have anecdotal information that says no. we have the same anecotal information that says you have to do things besides chat and play ping pong with some individuals. are you willing to give up the head slaps/cold rooms/yelling to give a free pass to the toughest and least willing to talk of our enemies?
10.24.2007 11:34am
X. Trapnel (mail) (www):
(That is to say, it might well be best to have an institutional ban that allows no exceptions and is thus categorical, even if it is morally appropriate to violate this ban in certain circumstances. Again: nothing surprising here, a very standard institutional design outcome.)
10.24.2007 11:36am
J. F. Thomas (mail):
This is the question I would like to see asked in a poll:

Who do you think has is better equipped to determine the most appropriate interrogation procedures for terrorists: the professional, uniformed military or political appointees?
10.24.2007 11:37am
Anderson (mail):
Mr. Aubrey's enthusiasm for emulating the Gestapo speaks for itself.

As for this --

According to one source (WSJ editorial of 10/9/07), waterboarding was successfully employed in the interrogation of Abu Zebaydah and Khalid Sheikh Mohammed.

-- Ron Suskind has already shown us what "successful employment" meant with Zubaydah (false reports that sent us running around in circles). As for KSM, he's thought to have confessed to plenty of stuff he didn't do.

More importantly, who *says* that torture was the only way to get good intel from these guys? Answer: the same people who are guilty of torture. Those of us who didn't abandon our critical faculties after 9/11 may wonder whether those sources are completely trustworthy on the subject.
10.24.2007 11:47am
J. F. Thomas (mail):
You know one of the methods cited--induced hypothermia--is a real interesting "method" of eliciting information. First off, it is extremely dangerous because hypothermia can quickly spiral out of control (the government has admitted that in at least one case in Afghanistan a detainee died from hypothermia), so if you want to do it right you need careful medical monitoring, probably by a doctor (the medical ethics of aiding torture is very problematic). But the information you get from the victim is going to be very suspect. Hypothermia causes delusions, confusion, and delirium (the brain shuts down as many higher functions as possible to maintain core functions and temperature). So as an interrogation technique (if you are actually looking for useful time-sensitive intelligence rather than a blanket confession), it is pretty worthless.
10.24.2007 11:49am
ejo:
actually, the UN definition is just as amorphous as that offered here. "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person..." those are squishy words-what is "severe"? as noted in the same wiki article, this means there are "less than severe" amounts of pain and suffering that can be inflicted upon a person.
10.24.2007 11:51am
J. F. Thomas (mail):
ejo:

I've told you what our standard should be--The Army Field Manual. Your response was that the document was just some kind of cover and the military really didn't follow it. So you just insult the military when I offer a reasonable and well-thought standard (based on a century of interrogation experience in many different circumstances) for interrogating detainees. It offers the advantage that if we follow its standards we won't be put in the situation of having to ask "is this torture" (or actually "cruel, inhuman or degrading treatment"--since that is the standard, not torture) and get down to the hair-splitting you are so concerned about (which apparently for you is somewhere between yanking fingernails and starting to cut off body parts).
10.24.2007 12:03pm
Anderson (mail):
actually, the UN definition is just as amorphous as that offered here. "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person..." those are squishy words-what is "severe"?

Next up, ejo on squishy words like "consent" -- what is consent, after all? Doesn't no mean yes sometimes?
10.24.2007 12:05pm
Richard Aubrey (mail):
[Deleted by OK on civility grounds]
10.24.2007 12:13pm
Anderson (mail):
I'm sorry, Mr. Aubrey; I thought you endorsed our use of torture, endorsed torture's efficacy, and cited the Gestapo as an example of what we should be doing. I guess that I completely misread your comments above.

So, on the "separate question" of whether the Gestapo's torture tactics should be emulated by the United States, would you care to state your opinion, so as to ward off any future misunderstanding?
10.24.2007 12:30pm
ejo:
again, you avoid the question, JF. if the definition of torture is based on the word "severe", it follows that "less than severe" is not torture. further, the word "severe" is undefined. are head slaps "severe"? what about forced standing? fake menstrual blood to a muslim? I would say no, you would probably answer yes to anything beyond koranic debates. as I said, the purported definition is, essentially, meaningless.
10.24.2007 12:31pm
Richard Aubrey (mail):
[Deleted by OK on civility grounds]
10.24.2007 12:37pm
wfjag:
One of the frustrating things about discussions of “torture” is that while there are frequent assertions that interrogation techniques – waterboarding, sleep deprivation, stress positions, etc. – are or are not “torture” and reference is made to the Convention Against Torture, it appears that seldom do the persons who make those assertions have, in fact, either read the Convention or the declarations and reservations of the US when it became a signatory to the Convention. That is apparent in many of the comments, above. One of the declarations and reservations by the US was that Articles 1 through 16 of the Convention (which includes its definitions in Art. 1) “are not self executing.” Further, in interpreting the definition of “torture,” “The negotiating history indicates that the underlined portion of this description was adopted in order to emphasize that torture is at the extreme end of cruel, inhuman and degrading treatment or punishment and that Article 1 should be construed with this in mind.” Additionally, “The term "torture," in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain.” Under the Convention, as ratified by the US Senate, waterboarding, sleep deprivation, stress positions, are not “torture.”

It does not matter what someone who appears on CNN or other talk show says – including a US Soldier who had been captured by terrorists and waterboarded. Although pundits and columnists may not understand the legal significance of definitions, I’d think that lawyers would. Pundits and columnists throw around terms like “genocide”, “war crimes” and “torture” to obtain ratings by depending on the shock value of such words. I have seen comments to other blogs objecting to the use of the term “Islamofascist” on various grounds, mostly concerning the shock value and lack of accuracy of the term. When discussing what is or is not “torture” I’d expect to see at least as much concern, since there is a definition, even if you don’t happen to agree with it. For further information, see,

“CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, TREATY DOC. 100-20, 1988 U.S.T. LEXIS 202, April 18, 1988, Date-Signed.

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, DC, May 10, 1988.

***

DECLARATION REGARDING THE NON-SELF-EXECUTING NATURE OF THE CONVENTION

Although the terms of the Convention, with the suggested reservations and understandings, are consonant with U.S. law, it is nevertheless preferable to leave any further implementation that may be desired to the domestic legislative and judicial process. The following declaration is therefore recommended, to clarify that the provisions of the Convention would not of themselves become effective as domestic law:


"The United States declares that the provisions of Articles 1 through 16 of the Convention are not self-executing."

***

ARTICLE 1

Article 1 defines "torture" for purposes of the Convention. The Convention seeks to define "torture" in a relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned. "Torture" is thus to be distinguished from lesser forms of cruel, inhuman, or degrading treatment or punishment, which are to be deplored and prevented, but are not so universally and categorically condemned as to warrant the severe legal consequences that the Convention provides in the case of torture.

The Convention does not attempt to catalogue the various acts that constitute torture, nor was it thought possible to draw a precise line between torture and lesser forms of cruel, inhuman or degrading treatment or punishment. Rather, the Convention sets forth certain criteria which must be applied in determining whether a given act amounts to torture. For an act to constitute torture, it must be an extreme form of cruel and inhuman treatment, it must cause severe pain and suffering, and it must be intended to cause severe pain and suffering.

The requirement that torture be an extreme form of cruel and inhuman treatment is expressed in Article 16, which refers to "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture. * * *" The negotiating history indicates that the underlined portion of this description was adopted in order to emphasize that torture is at the extreme end of cruel, inhuman and degrading treatment or punishment and that Article 1 should be construed with this in mind.

The extreme nature of torture is further emphasized in the requirement that torture cause severe pain and suffering. Article 1 recognizes that severe pain and suffering may be mental as well as physical. Mental pain and suffering is, however, a relatively more subjective phenomenon than physical suffering. Accordingly, in determining when mental pain and suffering is of such severity as to constitute torture, it is important to look to other, more objective criteria such as the degree of cruelty or inhumanity of the conduct causing the pain and suffering.

Further, the requirement of intent to cause severe pain and suffering is of particular importance in the case of alleged mental pain and suffering, as well as in cases where unexpectedly severe physical suffering is caused. Because specific intent is required, an act that results in unanticipated and unintended severity of pain and suffering is not torture for purposes of this Convention. The requirement of intent is emphasized in Article 1 by reference to illustrate motives for torture: obtaining information of a confession, intimidation and coercion, or any reason based on discrimination of any kind. The purposes given are not exhaustive, as is indicated by the phrasing "for such purposes as." Rather, they indicate the type of motivation that typically underlies torture, and emphasize the requirement for deliberate intention or malice.

In view of the above, such rough treatment as generally falls into the category of "police brutality," while deplorable, does not amount to "torture." The term "torture," in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain. See European Court of Human Rights, Judg. Court, January 18, 1978, Case of Ireland v. United Kingdom Series A, No. 25, 2 E.H.R.R. 25, 80; European Commission of Human Rights, Op. Com., 5 November 1969, Greek Case, §11, YB XII p. 501.

The scope of the Convention is limited to torture "inflicted by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity." Thus, the Convention applies only to torture that occurs in the context of governmental authority, excluding torture that occurs as a wholly private act or, in terms more familiar in U.S. law, it applies to torture inflicted "under color of law." In addition, in our view, a public official may be deemed to "acquiesce" in a private act of torture only if the act is performed with his knowledge and the public official has a legal duty to intervene to prevent such activity.” (Emphasis in original).


In view of the US's declarations and reservations when the Senate ratified the Convention, I find many of the questions put to the Attorney General nominee by various Senators about whether waterboarding is torture and similar topics to be exceptionally disengenious. Since legislation is needed to implement the Convention, including its definition, it is the Senators who were asking the questions who should have been answering those questions. However, since the US press, pundits and columnists fail to understand the significance of the fact that the Convention is not self-executing, they also failed to note that it is Congress' obligation to enact the standards, rather than an Attorney General's obligation to make them up and then prosecute on that basis.
10.24.2007 12:41pm
J. F. Thomas (mail):
J.F. Thomas has, probably by accident, come closest to an honest discussion when the subject of Luttrell and "Lone Survivor" arose, insisting that, although it cost us eighteen men, it was still the right decision. IOW, he's admitting there can be a cost for moral decision making. Which few want to admit.

It was not by accident at all. It is completely dishonest to discuss military decisions and pretend that in war that soldiers do not die in battles every day because of conscious and moral decisions made by their commanders.
Sometimes they are not as stark as the one made in the "Lone Survivor" instance, but they are made nonetheless.

To insist that torture never works is silly. It does work, sometimes and in some circumstances, and to insist that it's been used for millenia solely as a form of recreation or something is nonsense.

Of course torture is going to elicit information, and sometimes that information is going to be useful. But the question is the overall cost-benefit analysis of using torture is being overlooked by those who advocate it. The military knows that the tactical benefits are soon outweighed by the strategic disadvantages. Read the introduction to The Army Field Manual as to why the military rejects coercive interrogation techniques. Remember that the new Field Manual was written after the debacles of Abu Gharaib and other incidents throughout Afghanistan and Iraq and in spite of considerable pressure from the civilian leadership of the Pentagon and the administration to allow some coercive techniques.

Even if we have elicited good information through the use of kidnapping, torture, secret prisons, and extraordinary rendition, we have severely damaged relations with Canada, France, Italy, Germany (a few dozen CIA agents will never be able to set foot in Europe for the rest of their lives) and other countries. In at least a couple of those cases, the damage was completely unnecessary because we nabbed completely innocent people. Has the information we have gained through extra-legal and illegal methods worth the lack of cooperation we are going to experience in the future and the damage to our reputation in the world?
10.24.2007 12:50pm
ejo:
[Deleted by OK on civility grounds]
10.24.2007 12:52pm
cboldt (mail):
ejo -- further, the word "severe" is undefined --
.
Back to the statutes for you.
.
The US war crimes statute as amended in September 2006 refers to 18 USC 2340 for the definition of "severe mental pain or suffering," and draws on 18 USC 1365 to define "serious bodily injury."
10.24.2007 12:55pm
Kurmudge (mail):
Again, I go back to the Navy training, where, compared with waterboarding, if it is defined as "torture", we "torture" every single prospective pilot by sliding them into the water and forcing them to stay until they are terrified enough to wash out of flight school. Common sense has to inhere at some point. Like it or not, virtually every interrogation ever conducted by Andy Sipowicz on "NYPD Blue" was "torture" by the wartime standards we are all being urged to apply.

And I repeat my offer to all of the idealists and theoreticians inveighing here. Accurately describe waterboarding and equivalent rough questioning techniques to the flyover citizens in Indiana and Kansas City, then ask the people whether such tactics are fair game for questioning non-citizen terror suspects. I wager that you don't do so because you know you wouldn't like the poll results. When I ask a random person on the street what "torture" is, the response is something like bamboo needles under fingernails, razor blades slicing, or assaults on gonads, not getting wet and dunked under rules designed to frighten but prevent harm.
10.24.2007 12:57pm
Richard Aubrey (mail):
J. F. Thomas. Our rep in the rest of the world rests on other issues.
See, for example, Hanson on Turkish views of the US.
The worst these examples can do is to give people who already have an opinion an excuse for the opinion, which they would hold without the excuse.
Our opinion of ourselves is all that matters.
10.24.2007 12:58pm
J. F. Thomas (mail):
In view of the US's declarations and reservations when the Senate ratified the Convention, I find many of the questions put to the Attorney General nominee by various Senators about whether waterboarding is torture and similar topics to be exceptionally disengenious.

I think you miss the point of the Senate's clarification. They are limiting the definition the definition of torture to practices carried out under the "color of law" (which of course would cover anything authorized by the President), the discussion of what constitutes torture (and they reaffirm that stress positions and infliction of mental pain and suffering constitutes torture) is secondary.
10.24.2007 1:02pm
cboldt (mail):
wfjag: What you said deserves a repeat ...

Since legislation is needed to implement the Convention, including its definition, it is the Senators who were asking the questions who should have been answering those questions. However, since the US press, pundits and columnists fail to understand the significance of the fact that the Convention is not self-executing, they also failed to note that it is Congress' obligation to enact the standards, rather than an Attorney General's obligation to make them up and then prosecute on that basis.


The Senators have the power to ASSERT that waterboarding is illegal. Expressly and specifically if they feel such precision is necessary to make the point.
10.24.2007 1:02pm
ejo:
so, if not prolonged, it doesn't meet the definition. good, sounds like we can waterboard if finished in 5 minutes. I also hate to tell you this, but those definitions go back to the use of that darn word "severe" again. can't get around that one-less than severe seems to not meet the definition.
10.24.2007 1:05pm
J. F. Thomas (mail):
Our opinion of ourselves is all that matters.

This of course is pure unadulterated bullshit. If you think that our opinion of ourselves is all that matters then we are doomed to lose the war on terror. Just try and maintain troops in Afghanistan or Iraq without the cooperation of Kuwait, Turkey, or Pakistan (or Afghanistan and Iraq for that matter).
10.24.2007 1:07pm
J. F. Thomas (mail):
Why do you think Bush got bent all out of shape about the Armenian genocide declaration? We need Turkey's cooperation.
10.24.2007 1:08pm
J. F. Thomas (mail):
The Senators have the power to ASSERT that waterboarding is illegal. Expressly and specifically if they feel such precision is necessary to make the point.

Actually existing statutes and laws (e.g. the war crimes Act and the implementing statute for the Convention, and the law that McCain got through last year) set the standard of treatment as prohibiting any acts that would be cruel and unusual punishment under the constitution. Of course on McCain's bill, Bush issued a signing statement saying the CIA was exempt from it.
10.24.2007 1:13pm
ejo:
The Senators have the power to ASSERT-do you mean the power to enact laws, in their infinite wisdom and purported standing as the world's greatest deliberative body? yet, for some reason, they have not chosen to do so, instead choosing to grandstand.
10.24.2007 1:13pm
Richard Aubrey (mail):
J. F. Those questions about our allies--sort of--have nothing to do with our reputation save in a sense I will mention later. They have to do with mutual interests.

The rep which damaged us is the Bush 41's betrayal of the post Gulf War uprising. This made Iraqis understandably cautious about standing up with us again. They should have learned it the first time, after watching Viet Nam.
The issue of, say, Abu Ghraib is meaningless in this context. It would be used by some lefty European student as an excuse for his pre-digested anti-US opinion. If not, he'd find another. But Abu Ghraib etc. doesn't seem to bother some of our allies who think naked twister is funny, in the context of what used to happen at a.g.
10.24.2007 1:30pm
kietharch (mail):
sjalterego:

"However, those situations rarely if ever occur (the prospect of gaining life-saving information)..."

How can you know that? it would be nice to believe that prisoners (ours as well as theirs) never have crucial potentially life-saving information. I could sleep better. But that is just a claim, right? what you would like to believe.

Some of the arguments above mention situations where the Geneva Convention (I think) applies; uniformed soldiers captured during a conventional war (will there ever be another conventional war?). That's different, isn't it? the soldier is a voluntary or drafted citizen; a workman who goes about his duties with unknowable enthusiasm. He is not, or is unlikely to be, a zealot.

The soldier should be and sometimes is granted the respect and the care that the conquering forces can afford. He gives "name, rank and serial number" and is consigned to the stockade.

The clandestine, unacknowledged "soldier" should expect less civilized treatment. He probably does expect less and, if he survives with no lasting injury, I think justice is served.
10.24.2007 1:31pm
J. F. Thomas (mail):
The Senators have the power to ASSERT-do you mean the power to enact laws, in their infinite wisdom and purported standing as the world's greatest deliberative body? yet, for some reason, they have not chosen to do so, instead choosing to grandstand.

As I noted, waterboarding is illegal under any reasonable reading of U.S. law (and any reasonable definition of torture as it is defined in international law). That is why no one in the Administration or potential nominees are foolish enough to be caught saying for attribution, and especially under oath, that waterboarding is an acceptable interrogation technique. To admit publicly that we have waterboarded detainees would immediately make George Bush a documented liar in the eyes of the civilized world, since he has said "we don't torture"--much more so than Clinton was when he said "I never had sex with that woman".

The only other alternative is we immediately drop out of the ranks of countries that consider themselves civilized and committed to the rule of law.
10.24.2007 1:31pm
J. F. Thomas (mail):
The issue of, say, Abu Ghraib is meaningless in this context.

Snatching innocent German citizens and spiriting them away to Afghanistan to be tortured does matter though. Keystone cop like operations in Italy conducted without the consent of the Italian government also matter. Spiriting away Canadian (again innocent) citizens to Syria to be tortured matters too. All these incidents will reduce the likelihood that these countries will cooperate with us in the future.
10.24.2007 1:39pm
ejo:
ah, under any reasonable reading-again, is it torture? is it severe enough-if, as some note above, they did it in flight school, I would have to say no. is it prolonged enough-it seems not to take too long, so no. you just don't like it. but, of course, you don't like any conduct, even short of "severe", that will potentially get results, no matter what the potential body count of the inaction.
10.24.2007 1:41pm
J. F. Thomas (mail):
The clandestine, unacknowledged "soldier" should expect less civilized treatment. He probably does expect less and, if he survives with no lasting injury, I think justice is served.

Again, read the Army Field Manual, it does not distinguish between a uniformed soldier (in fact once uniformed soldiers indicate they are unwilling to give more than their service number, rank and name, all interrogation must stop) and anyone else. So the rules are meant mostly for non-uniformed, irregular fighters who are not entitled to POW treatment under Geneva.
10.24.2007 1:47pm
cboldt (mail):
J. F. Thomas: As I noted, waterboarding is illegal under any reasonable reading of U.S. law

.

I take the opposite view, as a matter of statutory construction. I think the recently-passed Military Commissions Act results in a "damage line drawing" wherein waterboarding does not cross the statutory damage line.
10.24.2007 1:49pm
Smallholder (mail) (www):
The Bush administration has been playing definition games with the word torture. “We don’t torture!” they proclaim vociferously, while pointing to a hastily assembled legal definition that narrowly defines torture a something that causes major organ failure or death.

Several of the comments above embrace this willfully obtuse definition. Waterboarding, they argue, only causes temporary discomfort.

Bah.

By this definition, Saddam’s rape rooms were not torture for the women raped – they were only temporarily discomforted. They were not torture for the interrogated – they only had to watch their daughters be raped and were not physically touched at all.

One of the big moral problems of torture is the direct infliction of pain; it is the way you psychologically damage the tortured person. I teach in an immigrant-rich community. I had a young man from the Sudan who freaked out when I patted him on the back for a correct answer. He was literally incapable of seeing any physical contact as being positive because he was tortured by a militia in his homeland. I never enquired about the type of torture. It might have been physical pain or it might have been induced feelings of powerlessness while seeing his family abused, or maybe he was – wait for it – waterboarded. I didn’t ask for clarification from his family because it just didn’t matter. We just had to find a way to help this young man integrate back into society and feel safe, even if he didn’t suffer “major organ failure.”

Semantic games are fun. Arguing about definitions can be a jolly good time. But I hold that excusing the excesses of this administration is harmful to our nation.

Let me ‘splain.

But first, lest I be excused of being a islamofascistophile (is that a word? To heck with it. I’m German. I can glom words together), let me state clearly and unequivocally that I have no sympathy for the terrorists and believe that they do not have valid moral claims that would check our actions. Having set themselves outside the human social contract, they cannot then claim the protections of that contract.

That said, it is hard to know with 100% accuracy whether or not someone is a terrorist (aside from catching them in the act of putting out an IED.) As I understand it, many of our detainees were turned in by their neighbors or captured by reward-seekers. Some of the detainees were not Al Queda sympathizers when we shipped them to Gitmo. Of course, as a wise friend of mine once said, once you’ve sodomized someone with a plunger, whether or not he is sympathetic to the terrorists is a moot question. You’ve made up his mind for him.

The Geneva Conventions do not apply to the torture of the detainees despite the fervent dreams of the Kos Kids. The Geneva Conventions apply only to uniformed members of a combatant signatory of the treaty. Under the Geneva Conventions, illegal combatants may be summarily executed on the battlefield. And yet:

Even if we are not bound by treaty or moral argument to refrain from torture, we still should refrain from torture.

Because it is not effective and counter-productive.

This is what all the semantic-torture-narrow-definers miss. It simply doesn’t matter how you define torture. Many reasonable people will disagree. Many reasonable people with different ideas about the origins of rights will disagree with me about whether captured terrorists have a right not to be tortured.

When we torture folks, the limited utility of largely unreliable data is more than outweighed by the negative impact on support for the American effort – internationally and domestically.

The data gathered by torture is highly unreliable. If someone is removing your spleen (major organ failure!) with a spoon, you are likely to say whatever you think your torturer wants to hear in order to make the torture stop. If someone is waterboarding you (Not torture! Not torture! We have defined it as not torture!), you are likely to say whatever you think your non-torturer wants to hear in order to make the non-torture stop.

The damage to our reputation, however, can be reliably anticipated.

It does not good, oh ye Bush apologists, to point the finger and cry “The terrorists are worse torturers!” True, and irrelevant. The terrorists aren’t trying to motivate a coalition of liberal-minded Europeans and Latte-swilling Americans.

Aside from: one of my biggest complaints about the anti-torture folks like John McCain is that they underestimate the rationality of the American public and try to ban torture on the grounds that when we torture other folks are more likely to torture our soldiers. They should simply stick to the point that torture is wrong/ineffective/counterproductive. The bad guys are going to torture our boys no matter what we do.

If you want to defend “alternative interrogation” measures, we can have a debate. But to disingenuously claim that waterboarding is not torture is unproductive. If I’m wrong about the inefficacy and counter-productivity of torture convince me. Don’t try to pretend we don’t torture.
10.24.2007 2:00pm
Ramiro (mail) (www):
But it isn't a matter of politics, or at least, it shouldn't be. Certain fundamental rights are out of the reach of whatever majority may be willing to wipe them off. That's the case with torture, or at least should be, if the US Constitutions is adequatly interpreted.
10.24.2007 2:17pm
J. F. Thomas (mail):
Before I get jumped on for overstating my case, it is unclear when the interrogation of uniformed soldiers who refuse to give more than their name, rank and serial numbers must stop. the Field Manual leaves a lot of wiggle room. But certainly, the thrust of the manual is aimed at the interrogation of non-uniformed combatants and detainees. Uniformed soldiers who clearly fall under the Geneva definition of POW, who clam up, are supposed to be treated with kid gloves.
10.24.2007 2:20pm
Marklar (mail):
I am honestly staggered that this discussion is even taking place.


Accurately describe waterboarding and equivalent rough questioning techniques to the flyover citizens in Indiana and Kansas City, then ask the people whether such tactics are fair game for questioning non-citizen terror suspects.



I live in "Fly Over Country" and have a far higher opinion of my fellow citizens than you do.

Interesting reference to "non-citizen" suspects. If there's one thing that history teaches us, its that techniques used against a disfavored "other" will invariably seep into other arenas, and may well come back to bite Joe American in the ass.

But on the substance, I think you're wrong. I think if you showed "Flyover Country" folks what waterboarding actually entails, I doubt that many of them would sign off on it.

Nor is it just the cartoon liberal "namby pambies" warmongers love to invoke. Veterans have had issues - See, e.g., Erik Saar, "Inside the Wire."

And I love how our discourse has evolved to the point where "civilized" (white) Nazis could of course, be interrogated by the use of conventional techniques, but when it comes to the unwashed swarthy hordes *insert image of choice here*, then "the gloves must come off."
10.24.2007 2:28pm
Mark Field (mail):
Those who complain that Congress can and should define waterboarding as torture are overlooking the fact that Congress believes it already did so:

"A Republican senator who played a leading role in drafting new rules for U.S. interrogations of terrorism suspects said yesterday that he believes a compromise bill embraced by party leaders and the White House will bar some of the most extreme techniques said to have been used by the CIA.

Sen. John McCain (Ariz.) named three measures that he said would no longer be allowed under a provision barring techniques that cause serious mental or physical suffering by U.S. detainees: extreme sleep deprivation, forced hypothermia and "waterboarding," which simulates drowning. He also said other "extreme measures" would be banned." Source.
10.24.2007 2:31pm
PaulV (mail):
Clearly defining what is torture is the duty of Congress and not an attorney General
10.24.2007 2:32pm
cboldt (mail):
-- The Bush administration has been playing definition games with the word torture. --
.

And Congress has provided material support, by passing into law, codifying, the definitions requested/demanded by the administration.
10.24.2007 2:33pm
talleyrand (mail):
Wfjag, you are correct that the US Senate ratified the CAT as a non-self-executing treaty. However, you are wrong to imply that the US has not enacted implementing legislation defining torture. Check out 18 USC Sec. 2340, a criminal statute which defines torture as an "act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."

Notice that the definition includes the infliction of severe mental suffering. In my view, simulated drowning or other forms of simulated execution are likely to cause severe mental suffering and cannot be dismissed merely as forms of police brutality. I have certainly never heard of police using such tactics in interrogation (at least not in the US—maybe in Pinochet's Chile and similar regimes). If you have information that US police have used such tactics (without later being convicted of torture), I would love to see it. Incidentally, the US has never hesitated to call techniques such as waterboarding torture when used by other regimes.

http://hrw.org/english/docs/2005/11/21/usdom12071.htm
10.24.2007 2:35pm
gc:
It boggles the mind that some here would support the use of waterboarding on the grounds that (i) it (sometimes) works (ii) it does not cause permanent harm and/or (iii) even if it is condemned by others as torture, who cares about the opinions of anyone that is not American.

I live overseas, in a country where there are US solders posted. And the soldiers do commit crimes of various kinds and are subject to local laws. There are also American businessmen and tourists. If waterboarding is such an effective, desirable technique for getting at the truth and should be beyond criticism, I would like to pose the following question? Would the US government or the Americans as a people publicly declare that if an American solder or civilian living or visiting overseas is reasonably suspected by a legitimate foreign government of being engaged in a criminal act that may result in serious harm to others it would be perfectly OK to subject them to waterboarding? Please remember that (i) not all suspects are criminals and (ii) torture is already illegal, even if directely at confirmed criminals.

Actually, if waterboarding is such a good and defensible idea, why not introduce it as a standard, if not the preferred, police interrogation technique in the US?
10.24.2007 2:35pm
Anderson (mail):
cboldt's argument re: waterboarding is a good-faith reading of the statute re: "severe mental pain and suffering," but I do not see how the very physical sensation of drowning does not amount to "severe physical pain."
10.24.2007 2:37pm
cboldt (mail):
Those who complain that Congress can and should define waterboarding as torture are overlooking the fact that Congress believes it already did so
.

The story cites Senator McCain's belief. He was pwned by the administration on this. His proposed language was not enough, the administration insisted on and obtained war crime references to 18 USC 2340(2) and 18 USC 1365. Those statutory enactments are not there for decoration, they are there for effect.

.

I do agree that the Senate is distracting attention from its own action, by playing dumb or misleading as to the effect of the law they passed.
10.24.2007 2:38pm
George Weiss (mail):
oren kerr:

are you sure you cant express any opinion about the legaility of torture or water boarding in various situations?

i think its really indispensable to those trying to understand you and your positions on things.
10.24.2007 2:42pm
Richard Aubrey (mail):
Gc. Et al.

IMO, waterboarding may not qualify as torture. Whether it should be forbidden is a separate question. Some would say it should be. They may be right. But the characteristics of waterboarding, and its use in our own training, for example, make it difficult to discuss it as "torture" without complicating the discussion.
Let's say there's torture, and then there's waterboarding. Should both be forbidden? One? The other? Neither?

Happened to recall something my father related. The Germans got half a dozen American soldiers. Wanted current tactical info. Lined them up. Shot one guy in the face, sideways, so he'd fall down shrieking and bubbling, spitting blood and bone splinters. The others were too shattered at the sight to think of fake stories. They spilled. One or two got loose a day later and one of those was a good friend of my father, from OCS and in the same battalion. Hence the story.
It works. It is dishonest to insist that extraordinary means never work. They work, sometimes, and eschewing them has a price. If you're honest you need to put the costs of each path against each other.
And we see so little of that.
10.24.2007 2:48pm
PC:
And I don't know too many people on the streets of flyover land who would seriously categorize waterboarding as "torture" if given a good description.


If those people were kidnapped off of the streets of flyover land and waterboarded, do you think they would say they were tortured?
10.24.2007 3:00pm
cboldt (mail):
I do not see how the very physical sensation of drowning does not amount to "severe physical pain."

.

From Public Law 109-366, under Sec. 6, Implementation of Treaty Obligations:


(D) the term `serious physical pain or suffering' shall be applied for purposes of paragraph (1)(B) [cruel and inhuman] as meaning bodily injury that involves--
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty


Notice that's for serious physical pain. The threshold for severe is higher.

.

Looking only from a "pain" respective, serious physical pain is defined as "bodily injury that involves extreme physical pain."

.

I didn't write it. But that's how the physical sensation of drowning is apt to be found less than creating "severe physical pain." There must be a bodily injury (I assume that means some physical manifestation other than the electrochemical action that causes a pain sensation), PLUS, the sensation of pain must be extreme.

.

I don't recall (and didn't look up) if this recitation is also new as of September 2006. I think it is.
10.24.2007 3:15pm
Adeez (mail):
Thanks for your post Marklar (1:28). I was holding my "tongue," waiting for someone else to say it first.

I know stupid, broad generalizations are in vogue here (ya know, every bad person, law, policy, etc. is somehow related to The Left). But even I was surprised by the assertions by some commenters of what those in "flyover country" think. As if everyone between the coasts were of one mindset! Isn't it those evil libs who look down on everyone? Now I'm really confused!

Or when someone kept stating that it was only the "elites" who have a beef with torture. Wow. Like those arrogant, conceited Quakers? And those aristocratic Amish, who're so elite that they thumb their noses at our "technology." And don't get me started on all those rabbis, priests, lamas, and Imams whose collective conscience utterly rejects torture. Fuckin elitists.
10.24.2007 3:37pm
Anderson (mail):
Interesting, cboldt. So they take "pain" and decide that it really means "injury causing pain." Obviously, a violation of our treaty obligations, but no one in D.C. cares about those "quaint" things any more.
10.24.2007 4:12pm
Anderson (mail):
Above: Google up Menchaca and Tucker to see how much anybody actually cares when it's some of our guys.

Don't bother googling -- just go straight to this link, which reports that both Human Rights Watch and Amnesty Int'l issued statements at the time, condemning the torturers.

Torture is not supposed to be a partisan subject; everyone this side of Saddam Hussein is supposed to be against it. Who *made* it a partisan issue? George W. Bush &Co.
10.24.2007 4:24pm
Richard Aubrey (mail):
Anderson.

HRW and AI have to show they're neutral, from time to time. This was no-brainer since the guys were dead and none of the perps were going to listen to the HRW and AI anyway. Cheap, one-off reproach.

Look, instead, for all the media hits compared to, say, Abu Ghraib. Or, pick your favorite activist group. Compare and contrast.
See how many times they've been mentioned on VC, for example. Or TalkLeft.
The NYT. LAT. CNN.
10.24.2007 4:36pm
OrinKerr:
George Weiss writes:
oren kerr:

are you sure you cant express any opinion about the legaility of torture or water boarding in various situations?

i think its really indispensable to those trying to understand you and your positions on things.
George, my opinion is that to know the answer I would need to study it carefully, which I haven't. I can't have a view of the law without first learning the law, which I haven't done.
10.24.2007 4:37pm
Thorley Winston (mail) (www):
And I repeat my offer to all of the idealists and theoreticians inveighing here. Accurately describe waterboarding and equivalent rough questioning techniques to the flyover citizens in Indiana and Kansas City, then ask the people whether such tactics are fair game for questioning non-citizen terror suspects. I wager that you don't do so because you know you wouldn't like the poll results. When I ask a random person on the street what "torture" is, the response is something like bamboo needles under fingernails, razor blades slicing, or assaults on gonads, not getting wet and dunked under rules designed to frighten but prevent harm.


Good point, but I suppose so long as the term “waterboarding” is used to describe everything from (a) putting a cloth over someone’s face and dripping water on to it to simulate the sensation of drowning without actually physically harming the person being question to (what the CIA is alleged to be doing) to (b) dunking someone’s head under water and putting them at risk of drowning (which the Vietcong did) to (c) shoving a hose down someone’s throat, filling their stomach with water and stomping on their belly until it bursts (which the Japanese did), people like Senator Durbin will continue to get away with slandering our people by falsely equating their actions with the actions of our enemies.
10.24.2007 4:37pm
Mark Field (mail):

The story cites Senator McCain's belief. He was pwned by the administration on this. His proposed language was not enough, the administration insisted on and obtained war crime references to 18 USC 2340(2) and 18 USC 1365. Those statutory enactments are not there for decoration, they are there for effect.


I'm sympathetic to your argument, both here and a Balkinization, that the statutory language permits waterboarding. That's not the point of the issue here, however. Several commenters have defended Mukasey on the ground that Congress should be the body defining waterboarding as torture, not the AG. My point in response is that Congress thinks it already did this. Now, Congress may be wrong in so thinking, but as long as it believes it acted to bar waterboarding, it's fair to ask the AG nominee whether he concurs.


George, my opinion is that to know the answer I would need to study it carefully, which I haven't. I can't have a view of the law without first learning the law, which I haven't done.


George's question included both torture and waterboarding in one clause. I assume your response refers to waterboarding, since even Judge Mukasey and the Bush administration agree that "torture" is barred.

I also assume you'd expect an AG, perhaps even a nominee, to learn the law on this.
10.24.2007 5:02pm
e:
The mention of "mild torture" illustrates the problem of these all encompassing definitions of torture. Better policy discussion would result from recognizing the difference between torture and other morally objectionable treatment. Some actions may be inhumane and illegal under international law (thus US law under the constitutional reference to law of nations), yet does not create the extreme pain or permanent injury of torture. These tortured definitions remind me of the more ridiculous emotional distress damages cases and made up mental diseases. One can condemn torture and other behaviors, and still see the problem of all or nothing stances. A friend of mine was water-boarded in training. It simulated torture, but no real torture would happen in training. Soft techniques are often more effective and lead to better info, but ambiguity beyond the absolute admonition of permanent injury, rape and death will keep our methods effective.
10.24.2007 5:29pm
David Sucher (mail) (www):
OK asks:
"I don't understand your position. Could you articulate the argument for why you think the facts are "lean" but the conclusion "rich"?"

Sorry. What I meant is that you make what strikes me as very strong statement — "a significant majority of the public in the United States doesn't want a categorical ban on torture." — when you could also have used the same poll to say that "a significant majority of the public in the United States wants severe restrictions on torture."

More importantly, I am not sure exactly how much can be learned from that poll. My reasoning is that we live in a cultural milieu in which people have been trained to be "reasonable" and that translates into rarely adopting absolutes...there is always "another side to the story" or "someone else's opinion" etc etc and I think a lot of people are not confident about anything to favor absolute positions...it's the downside of "cultural relativism"and "multiculturalism" etc Everyone wants to be appear judicious and of a considered opinion -- what better way to do so than by avoiding making any absolute statements? I don't know how to"prove"my perspective but that's how I see such poll result— not very helpful.

But you chose to spin these very indeterminate poll "facts" in one way while you could have just as easily spun it the very opposite way. That's all. Just a matter of interpretation.

I don't take a statement such as "rarely justified" or "sometimes justified" to mean much more than that people are confused and scared to speak in terms of absolutes because they want to appear "reasonable" and in our society it is presumed that if one has a "nuanced" view of something then one is smarter, reasonable, etc etc
10.24.2007 5:41pm
pedro (mail):

I don't take a statement such as "rarely justified" or "sometimes justified" to mean much more than that people are confused and scared to speak in terms of absolutes because they want to appear "reasonable" and in our society it is presumed that if one has a "nuanced" view of something then one is smarter, reasonable, etc etc


Besides, one may think that person X is morally justified in engaging in torture in a ticking bomb scenario artificially concocted by an imaginative interlocutor, and still believe that torture should be always illegal. No need to preemptively absolve would-be torturers on the grounds that sometimes good people might be forced, by extraordinary circumstances, to make the choice of breaking a perfectly sensible law. In fact, some anti-torture people can indeed see themselves, in some unlikely scenario, making the choice of engaging in the despicable practice. But the dilemma they face in such a scenario is not "should I torture this one guy and possibly save a city, or should I not?" but rather "should I torture this one guy, possibly save a city, and face the legal consequences of my crime, or should I refuse to risk facing the legal consequences of my crime?" I say a person who is willing to torture to extract pressing information that may save a city should have such a darn sense of urgency and certainty about what he is doing that facing up to the legal consequences of his actions should not dissuade him much.
10.24.2007 7:23pm
pedro (mail):
Just one more thought. The reference to the ticking bomb scenario in my comment above is a throwback to the days (not too long ago) when conservatives used that scenario constantly to underline the reasonableness of torture--the good old days of imaginative concoctions! Nowadays, nobody talks about extraordinary circumstances. Quite telling.
10.24.2007 7:29pm
wfjag:
Dear cboldt:

Thank you for citing to the provisions applicable to the Detainee Treatment Act and Military Commissions Act that are codified. While I believe that you understand the problems with the definition of “torture,” I’m not sure that anyone else does.

Dear J. F.:

I will at some point forget proper netiquette and scream – and, I suspect, after you and others read this posting, you’ll likely scream, too. In this area, one that that likely involves our lives and safety, Congress has played sleight of hand games.

You refer to the Army “Field Manual” in support of your conclusion that waterboarding qualifies as “torture.” First, let’s look at the actual wording of Sec. 1002(a) &(b) of the Detainee Treatment Act of 2005:

“(a) IN GENERAL.—No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

(b) APPLICABILITY.—Subsection (a) shall not apply with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.”

Problem #1: There is NO “United States Army Field Manual on Intelligence Interrogation”.

It is commonly assumed that what is meant is US Army Field Manual “FM 2-22.3 (FM 34-52) HUMAN INTELLIGENCE COLLECTOR OPERATIONS”. The statute, however, doesn’t say that and assume is spelled “ass-u-me.” That's not a good place to start when discussing something as a possible criminal offense.

Problem #2: FM 2-22.3 is published by HQ, Department of the Army.

I use the word “published” deliberately – as it is a Field Manual, it is NOT a regulation, and so is NOT promulgated. Although it is true that the military can, under certain circumstances, exempt its regulations from the APA’s notice and comment provisions (as was done with the DOD HIPAA Privacy Rule), a Field Manual, not being a regulation is not subject to any notice and comment. It is not promulgated. Rather, the proponent agency merely publishes it.

Problem #3: FM 2-22.3 is not a “punitive regulation.” A violation of a military regulation does not, without more, support criminal charges. Even for a regulation, to prosecute under the UCMJ for violation of a regulation as a violation of a lawful general order, the regulation must contain language to the effect that the military regulation is a lawful general order such that violation of the regulation is a criminal offense. There is no language in FM 2-22.3 to that effect. Granted, conduct that violates the standards stated in a Field Manual likely violates other criminal laws – but, violation of a Field Manual, or any other standard that is not a punitive regulation, is NOT a criminal offense for that reason.

Problem #4: The last time I checked the US Supreme Court had held it was unconstitutional for Congress to delegate to an Executive Agency the power to define criminal conduct. The current version of FM 2-22.3 was published 6 September 2006 – or after the enactment of the Detainee Treatment of 2005. Further, the Preface of FM 2-22.3 states:

“This manual will be reviewed annually and may be amended or updated from time to time to account for changes in doctrine, policy, or law, and to address lessons learned.”

meaning the HQ, Dept. of the Army has clearly signified that it can change the provisions of the FM at any time – and since it is a Field Manual, can do so without any notice or comment by anyone.

Problem #5: The Preface also states that

“This manual applies to the Active Army, the Army National Guard/Army National Guard of the United States, and the United States Army Reserve unless otherwise stated. This manual also applies to DOD civilian employees and contractors with responsibility to engage in HUMINT collection activities. It is also intended for commanders and staffs of joint and combined commands, and Service Component Commands (SCC). Although this is Army doctrine, adaptations will have to be made by other Military Departments, based on each of their organizations and specific doctrine.”

Note who the FM, by its terms, states that it does NOT apply to – pretty much anyone other than Army personnel.

Para. 5-55, FM 2-22.3 governs interrogations by non-DOD personnel and states:

“Non-DOD personnel conducting interrogation operations in an Army facility must sign a statement acknowledging receipt of these rules, and agree to follow them prior to conducting any interrogation operations.”

If non-DOD personnel violate FM 2-22.3’s standards, the remedy is to stop the interrogation. However, breach of the agreement to follow the FM is not a criminal offense – since the charge would essentially be criminal breach of contact.

Problem #6: There is no military criminal jurisdiction over civilians. See Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957) (holding court martial of a civilian dependent unconstitional). So, a violation of the FM’s standards can not be used for military criminal jurisdiction over DOD or DA civilian employees, or contractor personnel.

Problem #7: FM 2-22.3 does not define waterboarding as “torture.” Rather, Para. 5-75 states:

“If used in conjunction with intelligence interrogations, prohibited actions include, but are not limited to—

***

• ‘Waterboarding.’”

While I agree that “waterboarding” is, under the current version of FM 2-22.3, a “prohibited action”, it is not defined as “torture.” As the FM can be changed at any time and without notice, and as by its terms the FM is applicable solely to Army personnel, that’s a distinction with major differences.

Moreover, HQ, Dept. of the Army may decide to move “waterboarding” to Appendix M of the FM, which covers interrogation techniques allowed under specified circumstances.

Problem #8: Recall that Section 1002(b) provides that Subsection (a) – the one containing any reference to any Army Field Manual – does not apply to anyone held “pursuant to a criminal law”. Presumptively anyone conspiring to kill US citizens or to attack US government property anywhere in the world can be charged under some provision of Title 18, US Code, and so be held “pursuant to a criminal law.” I won’t discuss whether proceedings under the Military Commissions Act are considered proceedings “pursuant to a criminal law.” However, I will note that Section 1002(b) creates a massive exception to any argument that “waterboarding” can be considered to be even a “prohibited action”, much less “torture”, under the Detainee Treatment Act of 2005.

Judge Mukasey correctly refused to say that waterboarding is torture, and correctly refused to say that he would prosecute anyone for waterboarding. Any charges along those lines would be a criminal defense counsel’s dream case. (And, I’ve only noted some obvious problems with contending that waterboarding is torture, or a criminal offense. I’m certain that any of the experienced criminal defense attorneys who read this blog and who read the FM could identify many more problems.)

Either the Senators and their staffs are too ignorant or stupid to realize that the statutes they have enacted are a complete FUBAR in this area – something I really doubt – or, (and this is where I scream) THE SENATORS QUESTIONING JUDGE MUKASEY WERE GRANDSTANDING FOR THE PRESS. And, our press, pundits and commentators are either too ignorant or to stupid to realize that – something I do not really doubt. (Mark Field, the WaPo article you cite is a fairly good illustration of this. Just because SEN McCain said he believes the bill he introduced outlaws “waterboarding” doesn’t make it so. He is, after all, running for President, and so might have some other motivations for his statements – and, I note that the WaPo didn’t quote the law in its article, much less analyze whether the wording of the law supported SEN McCain's assertion.)

Dear talleyrand: I am quite familiar with the wording of 18 USC Sec. 2340. However, if you want to prosecute “waterboarding” as a violation of that statute on the grounds that it constitutes “the infliction of severe mental suffering,” you’ll loose to the defense on a motion. You’ll not only bear the burden of proving beyond a reasonable doubt that there was “severe” mental suffering, under that statute you must also prove that the waterboarding caused or resulted in “the prolonged mental harm”. (However, as with O.J. and some other famous acquitted criminal defendants, I think you’ve got a good tort cause of action).

And for those commentators who complain that the administration is engaging in “legalisms” – that’s exactly the situation that Congress has set up.

So, are you ready to scream, too?
10.24.2007 7:31pm
MarkField (mail):

Mark Field, the WaPo article you cite is a fairly good illustration of this. Just because SEN McCain said he believes the bill he introduced outlaws “waterboarding” doesn’t make it so. He is, after all, running for President, and so might have some other motivations for his statements – and, I note that the WaPo didn’t quote the law in its article, much less analyze whether the wording of the law supported SEN McCain's assertion.


I think I already agreed with your first point, though since my comments were directed to some dialog cbolt and I have had on Balkinization that may have been too cryptic for others.

I don't see any reason to question McCain's sincerity on this subject. He does appear to me to have changed his position on other topics in ways which might fairly be called pandering, but I think that on this topic his personal history provides substantial evidence of sincerely held views.
10.24.2007 7:47pm
Anderson (mail):
Anyone here boned up on retroactive immunity?

Say that (1) waterboarding isn't torture under the MCA; (2) the MCA &related acts immunized persons responsible for waterboarding; but (3) Congress decides it didn't really mean to say waterboarding isn't torture, &amends the MCA accordingly.

Can Congress yank the previously-granted immunity from prosecution for acts committed before the MCA, when it appeared (grant this for my question) that waterboarding was indeed torture?
10.24.2007 7:56pm
cboldt (mail):
-- My point in response is that Congress thinks it already did this. Now, Congress may be wrong in so thinking, but as long as it believes it acted to bar waterboarding, it's fair to ask the AG nominee whether he concurs. --

.

My point was that I doubt Congress thinks as a unit on whether or not the 18 USC 2340/18 USC 1365 additions take waterboarding out of war crimes. I think those directly involved in the negotiation with the WH, and this includes McCain, know that it does -- the objective of the WH insistence was to provide legal cover, "good faith," for its CIA operators who had used waterboarding.

.

The statute has what appear to be two conflicting provisions. One that removes waterboarding from the definition of a war crime, and another that prohibits (but without criminal sanction) cruel and unusual as regulated by the US Constitution and related jurisprudence. So McCain can "have it both ways," depending on which part of the statute he prefers to focus YOUR attention on. He points to the part that forbids (without criminal penalty) cruel and unusual, and purposely avoids discussing the recently-enacted elements of the war crime "cruel and inhuman treatment." Is he lying? I don't think so. Is it "good faith"on McCain's part? I think not.

.

I hold that in politics, "all's fair." I expect them to lie and dissemble as a matter of general practice. It's up to the people to keep an eye on their actions, and see through the BS.

.

So, it's "fair" for them to ask Mukasey for his opinion, and it's also "fair" for Mukasey to dissemble right back at them.
10.25.2007 4:55am
J. F. Thomas (mail):
wfjag &cboldt:

I ignore the MCA. It is bad law. It is horribly written and internally inconsistent. On top of all that it is laughably unconstitutional on its face since of course habeas cannot be suspended except in times of rebellion or insurrection, and that just ain't happening. It also has a bunch of other problems like unconstitutionally giving law making power to the president. Any decent congress would have never passed a monstrosity and any reasonable court system would declare it unconstitutional in its entirety (but wait, the courts aren't allowed to review it).

As for the Army Field Manual, I am well aware that it is not law, even under the UCMJ. My point is that its procedures should be the standard of treatment followed by all agencies of the government (and it wouldn't bother me in the least if Congress used it as a basis of codifying a interrogation standard for government agencies).
10.25.2007 11:09am
ejo:
but, I think we have already established you are not interested in results-the 18 dead soldiers wasn't of the slightest concern under your views as long as the "world" continues to love us.
10.25.2007 11:29am
J. F. Thomas (mail):
but, I think we have already established you are not interested in results-the 18 dead soldiers wasn't of the slightest concern under your views as long as the "world" continues to love us.

Under what possible reading of what I wrote about that incident could you come to that heartless and soulless conclusion? I have the utmost concern and respect for our military. Each and every death of one of our soldiers grieves me deeply.

You are the one who has demonstrated repeatedly through this thread and others that you have no respect for the honor, traditions, or morality of the U.S. military; or the system of government, the Constitution or other institutions it was established, and each and every member swears and oath, to uphold and defend.
10.25.2007 12:24pm
Mark Field (mail):

My point was that I doubt Congress thinks as a unit on whether or not the 18 USC 2340/18 USC 1365 additions take waterboarding out of war crimes.


When the most prominent Senator on this issue announces publicly, before the vote, his understanding of the language, I think Members generally can accept that as stating the bill's intent. I do agree with you that the statute is horribly worded and that a reasonable reader would conclude that it does NOT do what McCain said. Again, though, that's not the issue here. If Mukasey wants to say that Congress blew it when it passed the torture bill, that's fine with me. What's not fine is for him to weasel out of answering the question at all.
10.25.2007 1:13pm
ejo:
you obfuscate on the meaning of torture, ignore that darn word "severe", and essentially advocate a position which dictates that, if the handcuffs are too tight, we are engaged in torture. you don't give a thought to the consequences of inaction and, if asked to balance "the loss of our soul" versus the lives of americans, you come out in favor of the former-did I miss anything? this is where you are coming from in your views, damn the consequences.
10.25.2007 1:13pm
Mark Field (mail):

Can Congress yank the previously-granted immunity from prosecution for acts committed before the MCA, when it appeared (grant this for my question) that waterboarding was indeed torture?


To paraphrase Mark Twain, I'm glad to be able to answer quickly, so I will: I don't know.
10.25.2007 1:14pm
Richard Aubrey (mail):
I'd give J.F. half a pass here. He's one of the few who will admit there may be a cost.
And he's perfectly willing for others to pay it.
10.25.2007 4:20pm
wfjag:
"Can Congress yank the previously-granted immunity from prosecution for acts committed before the MCA, when it appeared (grant this for my question) that waterboarding was indeed torture?"

Dear Anderson:

I'd think that would violate the constitutional prohibition on ex post facto criminal laws. And, since there is no clear law stating that waterboarding is "torture" (see, e.g. J.F.'s concession that "As for the Army Field Manual, I am well aware that it is not law, even under the UCMJ") I believe that all assertions that waterboarding meets the legal definitions of "torture" under US law are without merit.

However, except in places like this blog, don't expect anything like a discussion that those pro or con to that conclusion bother to explain any basis for their assertion. Rather, the best you'll get from proponents is "It worked on KSM, so it must be legal", and from opponents is "I think it's repugnant, so it must be illegal."

The whole discussion, however, is likely moot. Western interrogation methods are based on the emotional shock value of the unexpected. As one of the commentators above noted, his brother was waterboarded in training. It isn't pleasant, but after a few times, the subject looses the unreasonable fear of it. The terrorists study our techniques and train against them. They can waterboard in training, too. It likely worked on KSM because, at least according to the AQ training manuals that were captured, he'd probably been trained to expect that he'd be read Miranda rights and told he had a right to a lawyer. The waterboarding was completely unexpected, and he spilled his guts. Today, any AQ or similar group will have trained their people, and so there is no point to trying waterboarding.
10.25.2007 9:35pm
J. F. Thomas (mail):
I'd give J.F. half a pass here. He's one of the few who will admit there may be a cost.
And he's perfectly willing for others to pay it.


I'm willing to admit a cost. You are the ones who think there is no cost to torture. You think it doesn't matter what our allies think. You don't even care what it does to the people asked to torture.

I don't know where I obfuscated the meaning of torture. I am simply asking that we adopt standards of conduct that guarantee that we don't have to ask the question "hey, are we getting close to the line?"
When did you and ejo get back from the sandbox?
10.25.2007 11:36pm
J. F. Thomas (mail):
I would also like to point out that ejo and RA, not me, are the ones second guessing the decisions of our troops in the field (the decision to release the goat herders was made by the SEALs on the ground, they didn't call back to HQ to get a JAG opinion about what they should do). They would also apparently be comfortable having our soldiers routinely murder, in cold blood, innocent civilians.
10.26.2007 10:28am
gc:
Remember Chinese water torture, whereby victims are strapped down so that they cannot move, and cold water is dripped slowly onto a small area of the body, such as the forehead, and thus the victims are gradually driven frantic?

No one called it "Chinese water play" or "commendable Chinese interrogation technique". The fact is that, before all this verbal chicanery became the fashion, no one doubted that Chinese water torture is indeed torture and I don't remember anyone objecting to it being called the same.

If drops of water on the forehead undoutedly constitue torture, what kind of tortured logic would allow one to claim that pouring water on someone's face to simulate drowing is something less than that?
10.26.2007 12:53pm
Smokey:
J. F. Thomas:
"I ignore the MCA. It is bad law."
Just had to point that out for its own sake.

Now, to cut to the chase: The arm-waving over waterboarding began when it became very clear that the technique caused absolutely no injury, either permanent or temporary, and it worked exceedingly well. Those intent on undermining our military can't stomach something like that.
10.26.2007 3:03pm
J. F. Thomas (mail):
Those intent on undermining our military can't stomach something like that

As I have pointed out repeatedly, the military, who you claim I am trying to undermine, has explicitly and forcefully rejected not only waterboarding but any cruel or inhuman interrogation methods. Apparently, therefore, you believe (along with ejo and Richard) that the military is undermining itself by rejecting these practices. You, not I, are second-guessing the military by insisting that you know better how to handle interrogations, detainees and captured civilians better than they do.
10.26.2007 3:22pm
ejo:
well, I guess if the army endorsed methods were used by whomever was interrogating KSM and they didn't work and then other methods were used which did work and he spilled the beans, I guess the military could be said to be undermining itself. however, there is more to the world of interrogation and intelligence gathering than the army. however, they can always pass a target off to someone willing to taint their immortal soul-as long as the job gets done and we learn what we need to know.
10.26.2007 6:46pm
Josh5 (mail):
Torture doesn't actually work. If you talk to trained interrogators, they despise torture because interrogation is about creating a bond with the subject of questioning. Torture is the opposite.
And waterboarding is torture. For it to work, it has to be done repeatedly and the subject has to have legitimate fear that they will die. It doesn't work. The "torturers" that work for the U.S. government are contractor that are poorly trained and the U.S. military despises them because most of their efforts are counterproductive.
Last, the ticking bomb theorem. If you want to apply the ticking bomb theorem, you wouldn't use waterboarding, you would apply a black &decker to the kneecaps (essentially, don't pretend we will stick to any rules in a ticking bomb situation once you have already allowed torture). And maybe in some situations you would feel that is necessary. But how can you know that after you've taken out some man's kneecaps he won't just give you false info to say fuck you? There is no way to truly know that a subject has been broken, which is the goal of torture, breaking a person.
What the United States should accept is that we will have to live with loss? If you talk to counter-terrorism experts, there will be more attacks and the American public needs to accept a level of loss, because that's what war is.
10.27.2007 2:40pm
David W. Hess (mail):
I suspect that the form of water torture being used as I understand it works by taking advantage of the mammalian diving reflex to induce an overwhelming fear of drowning:

In humans, the mammalian diving reflex is not induced when limbs are introduced to cold water. Mild bradycardia is caused by the subject holding his breath without submerging the face within water. When breathing with face submerged this causes a diving reflex which increases proportionally to decreasing water temperature. However the greatest bradycardia effect is induced when the subject is holding breath with face submerged.

http://en.wikipedia.org/wiki/Mammalian_diving_reflex

If done properly, I doubt the subject would be in jeopardy of dying assuming the absence of an undiagnosed medical condition (necessitating problematical medical supervision as posted earlier) but I would still place it firmly into the torture category along with procedures that cause physical pain or disfigurement.

I would vote that it is either never justified or possibly only justified in the ticking time bomb scenario where authorization is granted through some procedure similar to granting a warrant with an ongoing significant review of effectiveness for every case.
10.27.2007 9:34pm
Richard Aubrey (mail):
J.F. I haven't dismissed any costs of torture.

And, whomever, I'm not second-guessing the SEALs. The survivor said he does that every day. I have my own second-guessing to do and I'm glad it's not as heavy as his.

Point is, there was a cost to the SEAL's decision and pointing it out is not the same as recommending a different decision. Pretending that is the case is juvenile as hell and not at all uncommon hereabouts.
10.28.2007 4:45pm
Smokey:
J.F. Thomas, responding to my post, stated:
"...the military, who you claim I am trying to undermine..."
Sorry, JFT, but I did not say that you, personally, are undermining our military.

But your very defensive response brings to mind someone who walks into a room and sees a jacket. He tries it on, and exclaims, "Hey! This jacket fits me perfectly! So it must be my jacket."
10.28.2007 4:58pm