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"Waterboarding Used to Be a Crime":

Judge Evan Wallach -- former JAG, renowned expert on the law of war, and designer of this web site on the subject -- provides a history lesson on the U.S. government's treatment of waterboarding in today's Washington Post:

The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it. . . .

We know that U.S. military tribunals and U.S. judges have examined certain types of water-based interrogation and found that they constituted torture. That's a lesson worth learning. The study of law is, after all, largely the study of history. The law of war is no different. This history should be of value to those who seek to understand what the law is -- as well as what it ought to be.

Related Posts (on one page):

  1. Confessions of a Waterboarder:
  2. "Waterboarding Used to Be a Crime":
  3. DoJ Official Waterboarded:
MarkField (mail):
You can find a draft version of Judge Wallach's full article here.
11.4.2007 9:13am
gattsuru (mail) (www):
We've also condemned the use of prisons, capital punishment, and most minor punishments, as well as attempted to punish those who commit such things. On the other hand, the law tends to recognize situations in addition to individual acts -- a logical person might suggest that there is a difference between an officer who committed such acts against someone he knew to be a non-combative civilian or a uniformed officer (both protected by different aspects of international law, and the use of such acts against a known terrorist might be viewed a little differently.

In addition, the described "water cure" is also a little different technically from waterboarding; the former is a rather basic technique of forcing water past the mouth, while the latter relies on the gag reflex and a few other psychological oddities to prevent it from doing so. The former tended to result in unconscious or long-term physical trauma because it relied on forcing water into the lungs or stomach, while waterboarding has no mechanical reason to cause lasting physical damage.

Isn't basic logical debate required to get into law, or did they drop that for the special judge track?
11.4.2007 9:25am
Daniel San:
gattsuru: In addition, the described "water cure" is also a little different technically from waterboarding;

If this is correct, it may be an important distinction. But, waterboarding being confidential, I think we are relying on guesswork. We know what is done in other contexts, then we rely on that and our other presuppositions, to make assumptions on what 'waterboarding' means in this context. That may be the best we have to work with, but it is important to recognize that, at a fundamental level, we don't know what we are talking about.
11.4.2007 9:55am
Anon. E. Mouse (mail):
Exactly, Daniel.

In the linked article, waterboarding is described as involving forcing water into someone via nose and/or mouth.

Other descriptions I've seen say that no water ever enters the person, but the sensation of water on top of a cloth or sheet over the face invokes an involuntary "I'm gonna drown" reflex that is absolutely terrifying.

I don't believe anyone on the topic anymore. Too many outright liars and basically honest but misled people on each side.
11.4.2007 9:59am
anomie:
On the other hand, the law tends to recognize situations in addition to individual acts -- a logical person might suggest that there is a difference between an officer who committed such acts against someone he knew to be a non-combative civilian or a uniformed officer (both protected by different aspects of international law, and the use of such acts against a known terrorist might be viewed a little differently.

In addition, the described "water cure" is also a little different technically from waterboarding

Do the existing statutes or court decisions suggest that these differences are dispositive (or even relevant), or are you just telling us what you wish the law were, not what it is?

Assuming that you could show us that the law requires "lasting physical damage" for actions to constitute torture or cruel, inhuman, or degrading treatment, where is your evidence of such "lasting physical damage" caused by the "water cure" that the legal history presented by Wallach disfavors?
11.4.2007 10:06am
Left shoe:
trauma because it relied on forcing water into the lungs or stomach, while waterboarding has no mechanical reason to cause lasting physical damage.

Since U.S. law defines torture as causing severe physical or mental suffering, is it your position that even the most "humane" version of waterbording -- which still causes someone to believe they're about to die by suffocation -- does not cause severe mental suffering? I understand the distinction you're trying to draw, but I don't see why it would be legally relevant unless the U.S. Government defined torture as causing "physical damage."
11.4.2007 10:07am
J. F. Thomas (mail):
I don't believe anyone on the topic anymore. Too many outright liars and basically honest but misled people on each side.

Well considering that no one in the administration will publicly admit that we have waterboarded anyone--because of course if they did the President's protestations of "we don't torture" would be proved to be the laughable lies any civilized, moral person knows they are, this statement is kind of silly.

Torture of course is something that must be defined. Some people claim that waterboarding as practiced by the U.S. is not torture. They say this without knowledge of either the the severity, frequency or method used by CIA interrogators (since I assume anyone possessing first-hand knowledge would not reveal it on this blog). There also seems to be a stream of moral relativism in that if the reasons for waterboarding are pure then it is somehow not "torture".

Others (like me) claim that waterboarding is torture and that discussing whether or not it is possible to waterboard someone in such a way so that it doesn't constitute torture under U.S. and international law is a pointless exercise, especially since not one of us knows exactly what the CIA is doing or has done (although we do know that dozens of detainees have been tortured to death). We believe that waterboarding is an unacceptable practice and should not be conducted by our government, end of story. The place to discuss such issues is in front of an open court before a jury where all the horrors of our secret prisons can be brought out into the open and the alleged torturers and the people who ordered the torture can defend their actions.
11.4.2007 10:28am
Thoughtful (mail):
"The place to discuss such issues is in front of an open court before a jury where all the horrors of our secret prisons can be brought out into the open and the alleged torturers and the people who ordered the torture can defend their actions."

Sadly, I don't think the President's schedule allows for this...
11.4.2007 10:37am
Thoughtful (mail):
I think the subject title, "Waterboarding USED TO be a crime" is revealing. The mindset of many in America is that 9/11 was a paradigm-changing event. Actions previously unacceptable are reassessed with a focus on security, or the illusion thereof, rather than principle.

Waterboarding used to be a crime.

Secret prisons used to be anathema to our way of life.

Americans used to prefer the rule of law over the rule of men.

America used to not go abroad in search of monsters to destroy.

The United States used to be a republic.
11.4.2007 10:43am
Porkchop:
gattsuru wrote:


In addition, the described "water cure" is also a little different technically from waterboarding; the former is a rather basic technique of forcing water past the mouth, while the latter relies on the gag reflex and a few other psychological oddities to prevent it from doing so. The former tended to result in unconscious or long-term physical trauma because it relied on forcing water into the lungs or stomach, while waterboarding has no mechanical reason to cause lasting physical damage.


You are completely wrong, both as to what is addressed and the effects, thereof -- Judge Wallach's article covers the full gamut of water "techniques," including the one you seem to think is somehow different, and, therefore, not "torture." The "mild version" you describe was the basis for war crimes convictions of Japanese military personnel.

As I have been suggesting for two days now, ever since I found that article in a comment to Lederman's post on Balkinization, read the full article (link to pdf above) in full and carefully. As far as I can see, Judge Wallach is the only person who has actually done legal research on actual U.S. cases dealing with water "techniques." He finds no meaningful legal distinctions between any of them. If anyone can find contrary precedent, then I'd be happy to look at it, but he has convinced me. He quotes testimony from the victims of waterboarding, testimony that was accepted by the post-WWII tribunals that convicted the Japanese forces of war crimes. I fail to understand how anyone can read their descriptions of their experiences and still believe that what they experienced was not, under any definition, "torture."
11.4.2007 10:47am
Anon. E. Mouse (mail):
JFT wrote:

Some people claim that waterboarding as practiced by the U.S. is not torture. They say this without knowledge of either the the severity, frequency or method used by CIA interrogators...

...

Others (like me) claim that waterboarding is torture

So, JFT, what exactly *is* waterboarding?
11.4.2007 10:48am
Anon. E. Mouse (mail):
P-chop,

If you define "waterboarding" as the good Judge and ex-JAG (of the Nevada National Guard) does...then, yes, waterboarding is torture. I think we can all agree *that* is torture.

That says nothing of an apparently unrelated procedure (which may or may not have ever been used by anyone alive during the Bush administration) in which absolutely no water enters the person.
11.4.2007 10:53am
Daniel Chapman (mail):
"The United States used to be a republic."

Speaking of which, who are YOU voting for in the upcoming primaries? I'm sitting them out because obviously Bush is going to refuse to step down anyway. The only reason Ron Paul isn't doing better in the polls is because his supporters keep getting thrown in secret prisons.
11.4.2007 11:05am
anomie:
That says nothing of an apparently unrelated procedure (which may or may not have ever been used by anyone alive during the Bush administration) in which absolutely no water enters the person.

How does water entering the person or not determine whether the actions constitute torture; or is this a distinction that makes no difference?
11.4.2007 11:06am
anomie:

Sadly, I don't think the President's schedule allows for this...

How much space will their be on 21 January 2009?
11.4.2007 11:08am
Anon. E. Mouse (mail):
Just so I'm not misunderstood, I'm not saying that a "no water goes in" waterboarding or whatever you want to call it is NOT torture. I'm just saying that the term "waterboarding" has been overloaded to the point of silliness, especially by Judge Wallach.

There's no serious debate about whether forcing water into someone's lungs meets a definition of torture. Of course people who do that are found guilty in a court martial. duh.

Judge Wallach and his ilk are detracting from the more important and much tougher question, and one open to serious debate, is whether "no-water-goes-in" waterboarding is torture.
11.4.2007 11:16am
Anon. E. Mouse (mail):
anonmie:

It is a huge difference.

Gross physical battery with lasting damage is clearly torture.

Scaring the hell out of someone may or may not be torture.

One is debatable, the other really isn't.
11.4.2007 11:18am
gngeese (mail):
I just don't understand. If 9/11 was paradigm shifting then of course things that were formally illegal may indeed be okay. The law changes per the context of the times--today the US fights a non-state enemy; one that does not obey the laws of war, that does not recognize international law, that does not have an ethical bone, that prefers the after-life. The laws that apply to US citizens, to war criminals, do not apply to enemy combatants. This seems self-evident, no matter what was decided yesterday, or the day before. waterboarding is simply not torture today, nor is the lethal injection for that matter, but that won't stop transanational humanist elites and some courts from saying otherwise.
11.4.2007 11:20am
Henri Le Compte (mail):
The good Judge informs us, "The study of law is, after all, largely the study of history." Apparently, he forgot about the living Constitution, and the need that we all recognize to interpret our laws in the light of modern situations and sensibilities.

Yes... waterboarding was historically illegal, but then, so was abortion. Your point is?? The Judge needs to join the rest of us in the 21st century.
11.4.2007 11:27am
Anon E. Mouse (mail):
gngeese:

"then of course things that were formally illegal may indeed be okay"


Absent an of Congress or a precedential court case? I think not.
11.4.2007 11:30am
loki13 (mail):
I have been amazed following the debate on Volokh about waterboarding the last few days. Here's what I have learned:

1. Moral relativism is now the province of conservatives. If scaring the hell out of someone may (or may not) be torture, let the mock executions begin!

2. Originalists believe that our founding fathers looked to pre-1400 interpretations of language, because, you know, the founding fathers were in favor of a strong executive.

3. Creating the appearance of a debate (but we don't know if waterboarding is torture... let's discuss) in the face of legal precedent, our own army field guides, testimony from our SERE interrogators, etc. etc. is as effective as outright denial.

Here's how I can answer the question. If my brother was captured, and the enemy used a technique on him over and over again until he talked, and I think it would constitute torture... then it's torture. No debate needed. The fact that the US has always recognized that its torture is just icing on the cake.
11.4.2007 11:37am
Andrew J. Lazarus (mail):

The law changes per the context of the times--today the [Reich] fights a non-state enemy [Judeobolshevism]; one that does not obey the laws of war, that does not recognize international law, that does not have an ethical bone, that prefers the after-life.

It's nice to be understood after all these years.
Yours sincerely,
A.H.
fuehrer@3reich.org
11.4.2007 11:43am
gc:
gngeese: I think Thoughtful was being sarcastic.

You state that laws that apply to war criminals do not apply to an enemy combatant because "he does not obey the laws of war, that does not recognize international law, that does not have an ethical bone". What's described sounds to me like a war criminal Kind of sounds like certain members of this administration, too. But I am referring only to a technical problem with your post.

"Waterboarding is simply not torture today, nor is the lethal injection for that matter". I do not remember anyone agreeing to the suspension of international treaties or US laws after 9/11. Thank you for laying bare for everyone to see the kind of extreme, nationalistic thinking that has allowed some within the government to act as if international treaties and US laws no longer matter.
11.4.2007 11:44am
Bpbatista (mail):
I'm sorry, but I can't shed any tears for Kalid Shiek Mohammed or any other SOB who is waterboarded. They don't die, and don't suffer any permanent injury. In what way, exactly, is that torture? Iron maidens, the rack, hot irons in various orifices — that is torture. All this liberal driven navel gazing is absurd. Of course, "toture" will disappear as an issue the second a Democrat is elected president — just like the legions of the "homeless" suddenly disappeared in 1993.
11.4.2007 11:48am
Bpbatista (mail):
One other question: since we know that Saddam Hussein routinely tortured his prisoners and enemies, did his minions use waterboarding? Did Pol Pot? Does Castro? If not, then I would suggest that waterboarding is likely NOT torture.
11.4.2007 11:50am
Porkchop:
Anon. E. Mouse wrote



P-chop,

If you define "waterboarding" as the good Judge and ex-JAG (of the Nevada National Guard) does...then, yes, waterboarding is torture. I think we can all agree *that* is torture.

That says nothing of an apparently unrelated procedure (which may or may not have ever been used by anyone alive during the Bush administration) in which absolutely no water enters the person.


What hypothetical procedure are you talking about? Presumably you mean covering the nose, mouth, and eyes with a piece of cloth, and then pouring water over the face. (If you mean something else, then please enlighten me.) What makes you think that "no water enters the person"? Cloth is porous; water flows through it into the mouth and nose. Of course, water "enters the person." It is naive to think that as anyone struggles for breath during such a procedure that they don't inhale some amount of water in the process, as well. Read the witness descriptions in the linked pdf.

But, I don't want to argue about how many water molecules it takes to make it torture. Let's just say that it doesn't. If the only point is that you are cutting off the ability to breath without "entering the body," then why not just cover the nose and mouth with plastic wrap? That way you could "simulate" asphyxiation without all the mess the pouring water over someone makes. Certainly, no water would "enter the person" under that circumstance, so no problem, right? That wouldn't be a "mock execution," or "torture," or anything, would it? If you don't have plastic wrap, you could use a plastic bag over the prisoner's head, or maybe duct tape. Heck, why not simply use a garotte? Please explain to my why "not entering the body" is where your line is drawn.
11.4.2007 11:53am
anomie:
Gross physical battery with lasting damage is clearly torture.

How does water in the lungs constitute "lasting damage"? Almost all persons who do not drown from water in the lungs, and who do not suffer permanent damage from oxygen deprivation (principally brain damage) are free from long-term physical affects caused by their near-drowning.

Would lasting physical damage from oxygen deprivation not count as torture if water never entered the lungs?

How does inflicting the extreme physical distress and involuntary, convulsive reactions attendant to waterboarding not constitute battery if water does not enter the lungs?

Just what are the huge differences under the law that your distinctions among waterboarding techniques are supposed to be illuminating?
11.4.2007 11:54am
Anon E. Mouse (mail):
loki13:
you can't be serious.

1. Moral relativism is now the province of conservatives. If scaring the hell out of someone may (or may not) be torture, let the mock executions begin!

(a) I'm not conservative.
(b) I'm not advocating moral relativism.
(c) I'm saying that any given practice (totally defined including context) is either torture or it is not.
(d) "may or may not" implies what it says, not what fits your favorite rhetorical device of the day.
(e) A realistic mock execution is torture. Unquestionably. Something with production values on the order of a middle-school play is not. Unless it is really bad and offends one's delicate artistic sensibilities.

3. Creating the appearance of a debate (but we don't know if waterboarding is torture... let's discuss) in the face of legal precedent, our own army field guides, testimony from our SERE interrogators, etc. etc. is as effective as outright denial.

We don't even know what "waterboarding" is. Denial? No. I think I clearly said it earlier: if water is forced into a person's lungs, it is torture.

What Judge Wallach does is paint a wide range of moist activities with one broad brush. That isn't fair to the debate.

If my brother was captured, and the enemy used a technique on him over and over again until he talked, and I think it would constitute torture... then it's torture. No debate needed.

You can't be serious. What if they just nicely asked him once per day, just after a very nice lunch?

The fact that the US has always recognized that its torture is just icing on the cake.

Paraphrasing an ex-president, it all depends on the meaning of "it."
11.4.2007 12:04pm
Porkchop:
Bpbatista wrote:


One other question: since we know that Saddam Hussein routinely tortured his prisoners and enemies, did his minions use waterboarding? Did Pol Pot? Does Castro? If not, then I would suggest that waterboarding is likely NOT torture.


I recall a television documentary concerning the Khmer Rouge regime in which a former prisoner went back to his prison, into the torture room, and described the experience of being waterboarded. So, yes, Pol Pot used it. But, why should it make a difference whether a particular dictator used a technique? If you look through history, I'm sure you could find numerous torture techniques the Khmer Rouge missed.
11.4.2007 12:14pm
jukeboxgrad (mail):
anon: "Scaring the hell out of someone may or may not be torture. "

Wrong. The statute is here (there are probably other relevant statutes, but this one is enough). It expressly forbids "the threat of imminent death," which is precisely what waterboarding is (regardless of how you try to blur the issue by talking about "a wide range of moist activities").

It might be helpful to notice that a bunch of current and retired JAGs have stated unequivocally that waterboarding "is torture, and it is illegal." It would interest me to hear about any JAGs who have said anything contrary to this.
11.4.2007 12:15pm
jukeboxgrad (mail):
anon: "Other descriptions I've seen say that no water ever enters the person … an apparently unrelated procedure … in which absolutely no water enters the person."

You seem to think that we have only used a procedure where "absolutely no water enters the person" (as if this distinction matters much; others have pointed out why it doesn't). What is the basis for this belief of yours? Where are those "other descriptions?"
11.4.2007 12:20pm
Anon E. Mouse (mail):
P-chop:

You have now actually gotten to the point where it gets tough -- is it torture to simply simulate drowning (with no physical effects)?

You say it is, and I respect that. If everyone in the government had your moral courage, we'd be better off.

Judge Wallach confuses the issue by bringing in obviously heinous procedures into the realm of "waterboarding", basically including full immersion. Alternatively, waterboarding proponents might be confusing the issue and cutting out what Judge Wallach is trying to keep in.

That was what I said (or tried to say) in my first post, I don't know who to believe and no debate is even possible until we define what "it" is.

Now, is there anyone out there willing to say that a mock execution implemented as a simulated drowing is *not* torture?

Full disclosure: I can't freakin' decide. I'm just happy that the question is fully defined.
11.4.2007 12:20pm
EH (mail):
These lines of argument are dysfunctional. Rather than getting mired in details and corner cases, how about approaching it from a different direction: should waterboarding be legal?
11.4.2007 12:22pm
Thoughtful (mail):
gc: Exaggeration is not the same as sarcasm. gngeese proves my point.

Daniel C: A pleasantly humorous retort, thanks. But recall there is a difference between being a totalitarian state and simply not being a republic. It's a spectrum. It's been almost 70 years since Garet Garrett, at the time a well known and well respected conservative journalists wrote, in 1938, "The Revolution Was". It begins:

"There are those who still think they are holding the pass against a revolution that may be coming up the road. But they are gazing in the wrong direction. The revolution is behind them. It went by in the Night of Depression, singing songs to freedom.

There are those who have never ceased to say very earnestly, "Something is going to happen to the American form of government if we don't watch out." These were the innocent disarmers. Their trust was in words. They had forgotten their Aristotle. More than 2,000 years ago he wrote of what can happen within the form, when "one thing takes the place of another, so that the ancient laws will remain, while the power will be in the hands of those who have brought about revolution in the state."

Just within the last week, Stephen Colbert, during a "The Word" segment, asked what job the Presidential candidates are running for: the President of the United States, as defined by the Constitution, or George Bush's job? If even a comedian gets the point, I'm sure it's not lost on you.
11.4.2007 12:23pm
loki13 (mail):
Anon E. Mouse,

Reading skills, much?



If my brother was captured, and the enemy used a technique on him over and over again until he talked, and I think it would constitute torture... then it's torture. No debate needed.

You can't be serious. What if they just nicely asked him once per day, just after a very nice lunch?


Um, I don't think *I* would believe that 'asking nicely' is a 'technique' that constitutes torture. Since this conversation is about waterboarding, you are clearly being willfully obtuse. I would engage in further debate, but I see you omitted point two.

Because there is no real debate. Just fatuous distinctions and snark to create the appearance of one.
11.4.2007 12:25pm
Laura S.:
Porkchop writes:

I fail to understand how anyone can read their descriptions of their experiences and still believe that what they experienced was not, under any definition, "torture."

I might describe my commute to work as 'torture' and be faultless in my usage. Your statement is true; those actions are torturous. But that does not then mean that they are Torture, capital 'T' within the meaning of law. A discussion about how tortuous the actions are is not meaningful in determining 'T'.

Second, as a moral point: I consider 'T' to be very clearly any form of physical mutilation. Mental stress is certainly a gray area because imprisonment itself raises questions of mental torture.

Finally, the law has always treated uniformed enemies (soliders) versus non-uniformed enemies (spies) differently. The basic rejection of torture in a diverse fashion (remember officers deserve access to scientific equipment to better pass the time) is a reflection that in a real war large numbers of both sides are captured and held.

These sorts of protections never extended to spies and saboteurs, who are subject to the harshest form of torture: the certainty of knowing they will be executed unless they turn and betray their compatriots.
11.4.2007 12:30pm
jukeboxgrad (mail):
anon: "Judge Wallach confuses the issue by bringing in obviously heinous procedures into the realm of 'waterboarding' "

You're the one who is confusing the issue by pretending you don't know what waterboarding is. Wallach's review (pdf) is thorough, and mentions a number of variations (like using seawater, for example). But the basic outlines of the procedure are sufficiently clear. For example, this is from the testimony of an American aviator who was waterboarded by the Japanese:

I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I'd get my breath, then they'd start over again.


After the war, US courts and tribunals heard many stories like this, and they properly considered this to be a form of torture, and a war crime. The pro-torture crowd would like to pretend this history doesn't exist, now that we're doing precisely what we used to prosecute as a crime.

The description in that testimony corresponds exactly to what we currently understand as waterboarding. For example, compare it with the definition offered by Brit Hume and Mort Kondracke (video available here).

As has been pointed out, you're being willfully obtuse, and offering claims that are completely fanciful and unsupported (e.g., the idea that we're using a procedure where "absolutely no water enters the person").
11.4.2007 12:43pm
Henri Le Compte (mail):
I think that we need to look at the question of waterboarding in its proper context. It doesn't occur in a vacuum. It has everything to do with saving lives. Saving the lives of American servicemen. Saving the lives of civilians (both American and Iraqi). Maybe, one day, saving an entire American city may be at stake.

Is waterboarding torture? I honestly don't know. Waterboard me, and maybe I'll have a clue. But honestly, that is not the real question, the real moral dilemma. The real bitch is "How far do you go to save the lives of people and places that you care about, that you love?" There is no question that waterboarding, sleep deprivation, etc has saved lives. You cannot discuss the "morality" of enhanced interogation without wrestling with that one!

Who wants to die so that a terrorist/murderer/extremist doesn't suffer discomfort? This is not a frivolous question; it is not a manipulative question-- real people, real American soldiers will die as a result of abandoning waterboarding. It is not fair to discuss the topic and ignore that fact. *

(*How do I know? Because the military/CIA continues to use it. They don't waste their time doing things that are useless.)
11.4.2007 12:45pm
Laura S.:

After the war, US courts and tribunals heard many stories like this, and they properly considered this to be a form of torture, and a war crime.


Again, the definitions are quite restrictive for civilians and people captured while in uniform.

You don't seem to comprehend that the 'rules' were setup with a purpose of discouraging the use of non-uniformed combatants.

You also keep talking as if people are being waterboarded constantly. They aren't. Three, _THREE_, people were waterboarded by the CIA--and only the CIA. An action which is currently in violation of the CIA's internal rules. What's happened here is that we've conflated protestations from the administration that the technique may sometime in the future be important and necessary with the idea that it is being actively practices. And in the process conflated a theoretical ("we have to stop the biological weapon") with the routine practice and abuse of the technique by the Japanese.
11.4.2007 12:51pm
jukeboxgrad (mail):
laura: "I consider 'T' to be very clearly any form of physical mutilation. Mental stress is certainly a gray area"

Maybe you should take a moment to read one of the relevant statutes. Torture does not require "any form of physical mutilation." The legal definition of torture includes this: "the threat of imminent death." That particular form of mental stress is not "a gray area," unless you are someone who does not respect the rule of law. So I should ask: are you a Republican?

"I might describe my commute to work as 'torture' and be faultless in my usage"

Your usage would indeed be legally "faultless" if your commute embodied "the threat of imminent death."

"the law has always treated uniformed enemies (soliders) versus non-uniformed enemies (spies) differently"

There are statutory distinctions between those groups, but those distinctions are not with regard to torture. Torture is illegal, even for "non-uniformed enemies."

"These sorts of protections never extended to spies and saboteurs, who are subject to the harshest form of torture"

That's utter nonsense. Our anti-torture statutes make no exception for "spies and saboteurs."
11.4.2007 12:54pm
Anon E. Mouse (mail):
Oh, my, I made very bad editing error.

What I tried to say was (add in the middle text):

Now, is there anyone out there willing to say that a mock execution implemented as a simulated drowing is *not* torture?

And will anyone say that waterboarding (the no-water-injected version) is not torture? That would imply it is NOT a mock execution.

Full disclosure: I can't freakin' decide. I'm just happy that the question is fully defined.

I'm sorry about that.

I don't see waterboarding (the non-invasive version) as necessarily a mock execution.

Captive might *know* that they're not going to kill them. But the shear panic caused by loss of control and involutary reflex/reactions may (or may not) be torture.

That's the part I can't decide.
11.4.2007 12:55pm
Robert Lutton:
(*How do I know? Because the military/CIA continues to use it. They don't waste their time doing things that are useless.)

Uh...do you read the newspaper? Is it your considered opinion that the military and the CIA (or for that matter any institution that you would care to name) never continue to do something that is useless out of institutional inertia, incompetence, political concerns etc.?
11.4.2007 1:00pm
anomie:
Judge Wallach confuses the issue by bringing in obviously heinous procedures into the realm of "waterboarding", basically including full immersion. Alternatively, waterboarding proponents might be confusing the issue and cutting out what Judge Wallach is trying to keep in.

Wallach describes a number of what you so coyly refer to as "moist activities," and he concludes that under U.S. law these techniques have "uniformly been rejected as illegal; often with severely punitive results for the perpetrators." There is no confusion on his part. Rather, he finds no provisions of the law that allow for any of the techniques he describes. That those who do not like Wallach's conclusions frequently proceed to draw distinctions among drowning-based interrogation techniques while failing to demonstrate either how Wallach uniformity of precedent argument is incorrect or how the statutes treat their distinct techniques separately from illegal torture and/or cruel, inhuman, or degrading treatment presents a very tempting conclusion as to who is engaged in trying to obfuscate and confuse the issues behind an inky cloud of distinctions without difference.
11.4.2007 1:00pm
jukeboxgrad (mail):
henri: "Is waterboarding torture? I honestly don't know."

There is a long history of US courts prosecuting it as torture. Numerous JAGs have condemned it as torture. You should explain why you have doubt where all those authorities do not.

"There is no question that waterboarding, sleep deprivation, etc has saved lives"

Please show your proof.

"real American soldiers will die as a result of abandoning waterboarding"

Then you should have the courage of your convictions and call for torture to be legalized, instead of claiming that torture isn't torture.

"How do I know? Because the military/CIA continues to use it."

Hayden supposedly banned it when he took over. Are you claiming those reports are wrong? What is your source?
11.4.2007 1:01pm
Anon E. Mouse (mail):
loki: you are begging the question.
11.4.2007 1:03pm
jukeboxgrad (mail):
laura: "the definitions are quite restrictive for civilians and people captured while in uniform"

I'm not sure what "definitions" you're talking about. Our anti-torture statute, which I've cited, makes no distinctions with regard to "civilians and people captured while in uniform," or anyone else. Try offering an argument based on something other than your imagination.

"You don't seem to comprehend that the 'rules' were setup with a purpose of discouraging the use of non-uniformed combatants."

You seem to be referring to the Geneva Conventions, which indeed are oriented towards "discouraging the use of non-uniformed combatants," and which make certain distinctions on this basis. Trouble is, none of those distinctions provide any basis for legitimizing torture. Torture is illegal, period, even when the persons being tortured are "non-uniformed combatants."

"Three, _THREE_, people were waterboarded by the CIA--and only the CIA."

I assume you have a reliable source for this claim (i.e., some source other than anonymous self-serving leaks from within the Bush administration). I also assume you can show us where the statute indicates the first three crimes get an automatic free pass, and are exempt from prosecution.

"the technique may sometime in the future be important and necessary"

If so, then Bush should ask Congress to repeal our anti-torture statutes. Then again, it's possible the rule of law means nothing to you, and Bush should just ignore the law and do whatever he pleases.
11.4.2007 1:15pm
Anderson (mail):
How do I know? Because the military/CIA continues to use it. They don't waste their time doing things that are useless

Ha ha ha ha ha! You're killing me with your ironic humor!
11.4.2007 1:17pm
Pluribus (mail):
This discussion is truly depressing. I grew up being taught (and firmly believing) that "we don't do what they do." The "we," of course, was the United States. The "they" was the Nazis, the Communists, the Viet Cong--all of those we fought for much of the 20th century. We had "principles," and they didn't. We respected the law and acted accordingly. In any discussion of torture, we didn't argue about particular procedures and how close they might come to torture but not cross over the line. Of course, we didn't torture. No ifs, ands, or buts--we just didn't torture, and we didn't do anything that our enemies could plausibly claim was torture. We were the champions of freedom, of decency, of respect for human rights. We abided by the laws of war and expected our enemies to do the same. And if they didn't their fate was Nuremburg. Now we argue about the details of coercive, intimidating, and truly frightening procedures and justify it in the name of necessity. If we don't waterboard anybody picked up in Afghanistan or Iraq, then al Qaeda will "win." "Win" what? And what will we lose? Sadly, al Qaeda has already won a major point. They have shown that Americans--or at least some Americans--are willing to get down and dirty with all of those who, in the past, we condemned so righteously. If we could beat the Nazis and the Communists without abandoning our principles, how come we can't beat a band of international outlaws without doing so? I still believe we can. I'm depressed that so many others seem to feel we can't--that we have to join 'em before we can beat 'em. It is incredibly sad.
11.4.2007 1:22pm
Anon E. Mouse (mail):
jukeboxgrad:

You're being unfair in multiple places, but the worse is this mis-use of Laura's quote:

"These sorts of protections never extended to spies and saboteurs, who are subject to the harshest form of torture"

That's utter nonsense. Our anti-torture statutes make no exception for "spies and saboteurs."


Now come on. She quite clearly said that the worst form of torture (no capital T, and in keeping w/ her terminology = not a legal definition) is being faced with the choice of the death penalty or a plea bargain of sorts in exchange for leniency.

Unless you are arguing that because threat of death is Torture, then a prosecutor offering a plea bargain in a capital case is Torture....
11.4.2007 1:26pm
scooby (mail):
Because the military/CIA continues to use it. They don't waste their time doing things that are useless

I take it you've never served in the military.
11.4.2007 1:28pm
Smokey:
loki13's 11:37am post is clearly projection. 'Moral relativism' has been used by libs and their enablers on the court - not by conservatives - to adopt foreign laws and precedent without the hassle of going through Congress.

The same people who think we should adopt foreign precedent and foreign laws are the same people who now suddenly point to certain other countries that don't allow waterboarding [not that waterboaring is torture; it's not]. See the slippery slope problem that begins with adopting foreign laws and precedent? Whoever is president, or the majority on the Court, can simply pick and choose which foreign country and foreign law they want to shove down our throats without any kind of representative vote or popular debate.

loki13 states:
"If my brother was captured, and the enemy used a technique on him over and over again until he talked, and I think it would constitute torture... then it's torture. No debate needed."
So, if loki13 says it's torture, then it is. No debate needed. Well, I guess that settles that...


...NOT!
11.4.2007 1:28pm
r78:

We don't even know what "waterboarding" is. Denial? No. I think I clearly said it earlier: if water is forced into a person's lungs, it is torture.

It is pathetic that our collective moral compass is so screwed that people are willing to accept this as a point worth of debate rather than just laughing at it.

The very idea that the definition of torture has anything to do with whether or not water or something else is forced into a person is just stupid, stupid, stupid.

If you put a plastic bag over someone's head, you aren't forcing anything into or out of them, either.
11.4.2007 1:29pm
jukeboxgrad (mail):
anon: "will anyone say that waterboarding (the no-water-injected version) is not torture"

I'll ask you once again where you got the novel idea that we are using a procedure where (as you said earlier) "absolutely no water enters the person."

"I don't see waterboarding (the non-invasive version) as necessarily a mock execution."

The law forbids "the threat of imminent death." To interfere with someone's ability to breath is to impose "the threat of imminent death." You seem to have developed a concept of waterboarding that does not interfere with the person's ability to breath. Really? Tell us more about how that works, and your basis for knowing that we are limiting ourselves to this novel technique.

"Captive might *know* that they're not going to kill them."

You should explain why our captives would have a basis to "*know*" that we're not going to kill them. Of course this would require you to ignore the fact that we've detained innocent people and beaten them to death.

It would also be helpful if you indicated your basis for being sure that none of our captives have ever been waterboarded to death.
11.4.2007 1:30pm
Laura S.:
jukeboxgrad,

First of all I am a Democrat but I don't care to hang my party's success upon the nail of fallacy.

Second, in my past two discourses my interest is in the Geneva Conventions based on assumption that what statues may exist, exist to implement those conventions--and where they deviate, do so by mistake.

My concern here is that people have certain attitudes toward torture much like they have attitudes toward fascism: its a reflexive presumption that the word is a placeholder for 'bad'. This is compounded by the word having a loose sense, 'i.e., my job is torture' and a legal sense.


If so, then Bush should ask Congress to repeal our anti-torture statutes. Then again, it's possible the rule of law means nothing to you, and Bush should just ignore the law and do whatever he pleases.

Is that precisely what McCain brokered?
11.4.2007 1:30pm
Anderson (mail):
I wonder whether Prof. Kerr will read Judge Wallach's op-ed and article and decide that he is in a better position to reach an informed opinion about waterboarding.
11.4.2007 1:31pm
Anderson (mail):
based on assumption that what statues may exist, exist to implement those conventions

I love it. Where we seek to invoke the treaties, we're told they're not self-enforcing and thus not relevant; where we seek to invoke the statutes, we're told they can only be applied to the extent they're compatible with the treaties.

Guess what? The torture statute prohibits torture. Period. Nary a reference to the Geneva Conventions as somehow controlling the scope of the statute.

My concern here is that people have certain attitudes toward torture much like they have attitudes toward fascism: its a reflexive presumption that the word is a placeholder for 'bad'.

Uh, no; neither "torture" nor "fascism" is a placeholder for "bad"; they *are* bad. That's a principal reason why torture is illegal -- because it's wicked.
11.4.2007 1:35pm
Anon E. Mouse (mail):
r78:

You are completely missing my point. Go back a re-read everything I wrote.

Also, since you missed that day in Logic 101:

1) If A, then B.
2) B is true.

Given 1 &2, no conclusion can be drawn about A.
11.4.2007 1:37pm
scooby (mail):
A few issues with the article:

The Japanese were bastards in WWII, and would torture people just to torture them. Waterboarding could still be a legitimate interrogation technique even though it could be abused when used repeatedly to inflict suffering. Torturing someone for the sake of torture is in violation of the Geneva conventions, regardless of the technique involved. For example, the conventions explicitly allow you to make POWs (or EPWs if you want to use the new acronym) work but working people to the point of exhaustion is a war crime.

As for the case of the sheriffs, it's not useful. They were using it to force a confession, which is illegal in and of itself. And there have always been varying standards between what police and military can do. For example, police can use hollow-point rounds whereas the military can't, MPs being the exception that proves the rule. I don't think the police should ever be able to use force in an interrogation, and I do think the military should be able to in the case of unlawful combatants.

Lastly, the civil action, civilians aren't allowed to so much as block each other's path, so they are useless in any debate about what military interrogators can do.
11.4.2007 1:43pm
Anon E. Mouse (mail):
jukeboxgrad: you are being silly.

Maybe if you were lawschoolgrad, you'd understand the concept of a hypothetical.

Please ATFQ: If such a procedure existed, would it be legally torture? Assume that the captive has no reason to believe that the captors will violate the Geneva convention. IIRC, the Germans in WWII rarely did. So pretend that you are in the hands of strict rule-following folks.

Now, is this torture?
If so, why?
If not, why not?

Degree of difficulty: Be careful in your use of "threat of immeninent death." Don't use that phrase in such a way that you imply all sorts of more silliness, like that a plea bargain in a capital case is torture.
11.4.2007 1:48pm
jukeboxgrad (mail):
anon: "You're being unfair in multiple places"

So far you've shown an impressive number of examples: zero.

"Unless you are arguing that because threat of death is Torture, then a prosecutor offering a plea bargain in a capital case is Torture""

Next time take a minute to read the law. It says this:

"torture" means 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)


(Emphasis added.) The prosecutor's conversation about the plea bargain is obviously "incidental to lawful sanctions." Also, the law doesn't say "threat of death is Torture." The law says "the threat of imminent death" is torture. I've already cited that language multiple times in this thread. The prosecutor is not imposing a threat of "imminent" death. Let us know if you think it's proper to randomly ignore words that appear in a statute.

How helpful that Laura compares waterboarding to her commute, and that you compare it to a conversation with a prosecutor. You're both being asinine.
11.4.2007 1:51pm
noname (mail):
The problem here is that there are multiple questions, at least two definitional ones and one ethical/policy one (all of which need to be addressed before even formulating the legal questions).

Definitional question #1:
What is the meaning of the term "waterboarding?"

Definitional question #2:
What is the meaning of the term torture? Or, more particularly, given a particular meaning of the term "waterboarding," does that practice fit into the definition of torture?

Ethical question:
Should circumstances/context make torture more or less acceptable?

Obviously, if a particular form of waterboarding doesn't even qualify as torture, then that changes the question of whether it should be legal.

Also obviously, the answer to the ethical question will determine the shape that a law about torture should take.

In these comments, however, we've been mixing up all of the questions.
11.4.2007 1:53pm
Stash:
Thank you everybody in favor of waterboarding for removing the scales from my eyes! It's harmless. It's humane.

Furthermore, given how innocous this procedure is, it cannot possibly be "cruel and unusual punishment." Well, it's "debatable" anyway, isn't it? We'd need to carefully investigate exactly what the procedure involved before can come to this conclusion, but certainly some form of it would be ok.

Therefore, I propose we use it domestically against non-military personel who pose a threat of immediate harm.

Sure, the standard of torture and "cruel and unusual punishment" is different. But we can definitely rule out the issue of whether it is torture. Once that hurdle has been overcome, the question is whether "just scaring" someone is "cruel and unusual." Obviously it is not.

Police and prosecutors routinely scare suspects into fingering others by threatening them with long prison terms. In fact, absent cooperation, the threat is intended to be carried out. But with waterboarding, the threat of drowning is entirely fake! It's a wonder the technique is even effective. What's a few minutes of discomfort compared to years of incarceration? What's a fake threat compared to a real one?

Yes, my friends, it's time to start a national movement to give our police and prosecutors the tools they need to effectively fight crime and make our Homeland safe. Do you realize that more people were murdered last month in Philedelphia than American soldiers killed in Iraq? Let's get our priorities straight. This is about our personal security. If waterboarding of dangerous suspects were allowed, OJ would have been convicted, along with those pesky Duke LaCrosse players. And I, personally, would lose no sleep if Charlie Manson were waterboarded daily. Therefore waterboarding must be OK.

QED
11.4.2007 1:55pm
Mike& (mail):
Then you should have the courage of your convictions and call for torture to be legalized, instead of claiming that torture isn't torture.


That is exactly right. If someone wants to say, "We should use torture," then we are in moral territory. Men and women of good faith can disagree on matters of morality. We could have a fruitful discussion examining when it's appropriate to use torture; we could rank categories of torture. (I and most others, e.g., would rather be waterboarded than have a finger cut off or be raped.) The conversation could move forward.

But claiming waterboarding is not torture is idiotic. Really, it's just so freaking ignorant that people who utter such things are either scoundrels or fools - often both.
11.4.2007 1:57pm
jukeboxgrad (mail):
smokey: "the same people who now suddenly point to certain other countries that don't allow waterboarding"

One of those "certain other countries" is the US (the country that the US used to be, that is.). There is a long history of US courts treating waterboarding as torture, and a war crime. That's the point of the article at the top of this thread. Nice job completely ignoring it.

"not that waterboaring is torture; it's not"

Then you should call on our government to apologize to the Japanese officers who we imprisoned for doing it to US aviators. And you should explain why US courts repeatedly made the mistake of treating as torture. And you should explain why a bunch of retired and active JAGs have called it torture. Because you know something all those folks don't know, right?
11.4.2007 1:59pm
davod (mail):
Waterboarding used to be a crime.

Thoughtfull:

"Secret prisons used to be anathema to our way of life.

Americans used to prefer the rule of law over the rule of men.

America used to not go abroad in search of monsters to destroy."

You need to broaden your horizons. All of these things were going on before 9-11, and before the coronation of George Bush, the embodiment of all things evil.
11.4.2007 2:01pm
jukeboxgrad (mail):
laura: "my interest is in the Geneva Conventions based on assumption that what statues may exist, exist to implement those conventions--and where they deviate, do so by mistake."

Your assumption is incorrect. The US Code outlaws torture. Period. This has nothing in particular to do with the Geneva Conventions.

"and where they deviate, do so by mistake"

If you think the US Code prohibition against torture is a "mistake," or contains mistakes, then the proper remedy for that is to change the law. But you're making it clear that you think it's fine to ignore the law as it is written, and as it has been enforced by US courts for decades.

"Is that precisely what McCain brokered?"

No.
11.4.2007 2:07pm
Anon E. Mouse (mail):
noname:

Exactly.
11.4.2007 2:09pm
davod (mail):
Bpbatista:

Of course Sadaam would not use water torture. The water would short out the electric torture systems used for electrocuting the prisoners, and water might stop the motors on the shredders used for shredding prisoners. Then again, I do not think throwing prisoners off buildings would be affected, nor snapping their bones with metal bars.
11.4.2007 2:12pm
gngeese (mail):
abortion was illegal yesterday, then legal today. waterboarding was illegal yesterday, and legal today.
that a court or act of congress has yet to decide the question does not make the legal abortion illegal. the legal process allows for this distinction.
11.4.2007 2:17pm
Anderson (mail):
Waterboarding could still be a legitimate interrogation technique even though it could be abused when used repeatedly to inflict suffering. Torturing someone for the sake of torture is in violation of the Geneva conventions, regardless of the technique involved.

Scoobs, you've managed to find the "except where useful for interrogation" clause in the torture statute -- congrats! Please link to it for our benefit.

The Inquisition and the Gestapo did not "torture for the sake of torture," and yet somehow their reputations suffered nonetheless.
11.4.2007 2:18pm
anomie:
Obviously, if a particular form of waterboarding doesn't even qualify as torture, then that changes the question of whether it should be legal.

It does? Anything that is not torture is necessarily unobjectionable and should be legal?
11.4.2007 2:24pm
davod (mail):
Jukeboxgrad:

"I assume you have a reliable source for this claim (i.e., some source other than anonymous self-serving leaks from within the Bush administration)." Unlike those non-self serving disclosures to the media of alleged FISA violations, investigations into Terrorist financing methods and alleged secret prisons.
11.4.2007 2:30pm
Anderson (mail):
Scott Horton notes a letter by four retired top JAGs who don't seem terribly confused about what waterboarding is, or whether it's a crime:

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

We agree with our active duty colleagues. This is a critically important issue--but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation.


But why should I listen to them instead of Smokey?
11.4.2007 2:31pm
Anon E. Mouse (mail):
Anderson:

Because you are impressed by an argument consisting entirely of an appeal to authority.
11.4.2007 2:37pm
Anderson (mail):
Because you are impressed by an argument consisting entirely of an appeal to authority.

Oh, right. Because I just now heard of this waterboarding thing when I read that JAG letter. And I should certainly ignore experts trained in the law when a legal question in their field of competence is broached.

Sorry that you're impressed by arguments consisting entirely of appeals to stupidity. They've clearly had their way with you.
11.4.2007 2:43pm
noname (mail):


Obviously, if a particular form of waterboarding doesn't even qualify as torture, then that changes the question of whether it should be legal.



It does? Anything that is not torture is necessarily unobjectionable and should be legal?


No. It changes the question. It does not eliminate the question. There is still a question of whether it should be legal, but it is not the same question as whether a particular type of torture should be legal. Obviously, lots of things that are not torture (from cruel and unusual punishment to fraud) are illegal, and should be.
11.4.2007 2:50pm
Cornellian (mail):
Kudos to John McCain, the only candidate for the Republican nomination who stands for America's honor and dignity on this issue and the only candidate for either party with genuine moral authority on the subject. He's got his flaws and he won't win the nomination but one can hope the next President (Republican or Demcrat) immediately nominates him to be Secretary of Defense.
11.4.2007 2:59pm
Smokey:
Anon E. Mouse said:

"jukeboxgrad:
You're being unfair in multiple places..."
Hey, that's his style. For instance, jbg said:
"I assume you have a reliable source for this claim (i.e., some source other than anonymous self-serving leaks from within the Bush administration)."
The statement was simply that three individuals had been waterboarded. That's a much more reliable source than C-BS News. Isn't it?

See, jbg's rhetorical trick of attempting to discredit the source of the statement only works when he's discussing the situation in his own mind. And there are multiple examples of jbg demanding that others must prove the negative that he has conveniently set up.

More Jukeboxgrad:
"The law forbids 'the threat of imminent death.'"
Then, of course, death row in every state must be promptly eliminated. Prisons, too, since the 'threat of imminent death' is ever present if you even so much as look at another prisoner the wrong way. [And being locked up is mental torture, don'tcha know.]

But that is the situation prisoners put themselves into when they violate society's laws. People in prison are not being 'tortured' [unless someone wants to take on that weak argument]. Why should the treatment be any different for killers who are nothing but heavily armed criminal thugs in Iraq, murdering innocent civilians and soldiers to get their way - after a free election?

People who are so agitated about a harmless interrogation technique need to get their priorities back in order. The life of one American soldier is worth more than the harmless but effective waterboarding of a thousand criminal thugs like KSM.
11.4.2007 2:59pm
Porkchop:
Pluribus, I agree wholeheartedly with you. I served in the military during the Vietnam era and beyond. We have lost our principles and our moral superiority. I despair for my country. The fact that we even have a discussion of this matter is depressing.
11.4.2007 3:09pm
anomie:
No. It changes the question. It does not eliminate the question. There is still a question of whether it should be legal, but it is not the same question as whether a particular type of torture should be legal.

Come again? That just seems to be yet another matter of definition and classification that addresses whether waterboarding is a particular type of torture or whether the law does forbid that type. I don't see how clearing-up those matters of the type status of waterboarding is changes the answer to the question of whether waterboarding should be legal. What we call it doesn't change the nature of the act.
11.4.2007 3:49pm
Benjamin Davis (mail):
The United States has not lost its way. It is our leaders that are engaged in a conspiracy to violate the torture statute and the war crimes act. Their argument is that they are "keeping us safe" while instilling us with fear all the time. And because of the fear and a general almost reflexive willingness to believe a President in time of armed conflict, we are encouraged to acquiesce in letting them do what they are doing. The hard thing is to resist this effort. Write your Senator at www.senate.gov and tell him/her not to vote to confirm Mukasey. That is something that you can do today.
Best,
Ben
11.4.2007 3:50pm
Que ridiculo!:
But that is the situation prisoners put themselves into when they violate society's laws. People in prison are not being 'tortured' [unless someone wants to take on that weak argument]. Why should the treatment be any different for killers who are nothing but heavily armed criminal thugs in Iraq, murdering innocent civilians and soldiers to get their way - after a free election?

Yes, why should the treatment be any different? Torturing people in U.S. prisons is illegal, so why are we torturing people over there?

The life of one American soldier is worth more than the harmless but effective waterboarding of a thousand criminal thugs like KSM.

Harmless... but effective? How does that work? If there's no harm, what's the point?
11.4.2007 3:52pm
A. Person (mail):
The people in this adminstration are SICK
11.4.2007 3:53pm
JunkYardLawDog (mail):
All the talk about military use of waterboarding and its illegality completely confuses relevant points. There is a specific law that specifically makes waterboarding illegal if carried out by MILITARY personnel. That law is part of the UCMJ. That law does NOT apply to NON-Military interrogators.

The MILITARY doesn't waterboard, but I'm sure as hell glad somebody for the USA IS WATERBOARDING in appropriate circumstances.

The fact we've gone 7 years without being hit again proves the overall effectiveness of waterboarding when appropriate and fighting the enemy over there instead of over here.

Says the "Dog"
11.4.2007 3:58pm
J. F. Thomas (mail):
People who are so agitated about a harmless interrogation technique need to get their priorities back in order. The life of one American soldier is worth more than the harmless but effective waterboarding of a thousand criminal thugs like KSM.

Smokey, don't drag the American military into degradation with you. They have made it clear with the new Army Field Manual on Interrogation that they want nothing to do with these techniques.
11.4.2007 3:59pm
jukeboxgrad (mail):
scooby: "Waterboarding could still be a legitimate interrogation technique even though it could be abused when used repeatedly to inflict suffering"

As Anderson pointed out, the law doesn't make an exception for torture when used as a supposedly "legitimate interrogation technique." Torture is torture, whether or not you claim a legitimate purpose for it, and torture is illegal. That's what our law says.

"there have always been varying standards between what police and military can do … I don't think the police should ever be able to use force in an interrogation, and I do think the military should be able to in the case of unlawful combatants."

What you "think" is infinitely less important than what the law says. The law says that the military cannot torture anyone, even "unlawful combatants."

If you advocate changing the law, then say so. But you should avoid pretending the law says something other than what it says.

"the civil action, civilians aren't allowed to so much as block each other's path, so they are useless in any debate about what military interrogators can do"

You're missing the point about the civil case Wallach cited. The significance of that case is that it represents an example (one of many he cites) of a US court ruling that waterboarding is torture. This is relevant to the extent that there are people who are claiming otherwise.
11.4.2007 3:59pm
jukeboxgrad (mail):
anon: "ATFQ"

You have a lot of nerve rudely demanding a response, since I've responded to everything you've said. You, on the other hand, have been non-responsive. In particular, you've ignored this simple, fair question that I will now ask for the third time.

Where did you get the novel idea that we are using a procedure where (as you said earlier) "absolutely no water enters the person?" You said this:

Other descriptions I've seen say that no water ever enters the person


I am asking you, again, to tell us where we can read those "other descriptions."

"If such a procedure existed, would it be legally torture?"

I can't begin to answer this question, since you haven't come close to describing clearly what you mean by "such a procedure."

"Assume that the captive has no reason to believe that the captors will violate the Geneva convention."

Our captives have numerous reason to believe that "the captors will violate the Geneva convention." So your hypothetical is not just uselessly vague but also uselessly divorced from the relevant reality.

"Be careful in your use of 'threat of immeninent death.' Don't use that phrase in such a way that you imply all sorts of more silliness, like that a plea bargain in a capital case is torture."

I've explained why "a plea bargain in a capital case" has nothing to do with the current discussion. For you to bring it up is pure obfuscation.
11.4.2007 4:13pm
jukeboxgrad (mail):
noname: "The problem here is that there are multiple questions"

You're suggesting the matter is excessively complicated. It's not, although some folks like to pretend it is.

"What is the meaning of the term 'waterboarding?' "

Applying water to the face in such a way as to interfere with breathing. Here's a shorter version: using water to asphyxiate. Clear enough? Further definitional help can be found here.

"What is the meaning of the term torture?"

Read the statute. Here's one key phrase: "the threat of imminent death." By law, to impose "the threat of imminent death" is to torture.

"given a particular meaning of the term 'waterboarding,' does that practice fit into the definition of torture?"

Let us know if you have trouble understanding that asphyxiation imposes "the threat of imminent death." And let us know if you're also having trouble comprehending that US courts have a long history of ruling that waterboarding does indeed "fit into the definition of torture." And that a bunch of current and former JAGs say precisely the same thing.

"Should circumstances/context make torture more or less acceptable?"

You have the right to believe that, and you have the right to advocate that this idea should become part of our anti-torture statute. Trouble is, it's not. By law, torture is a crime. Period. Our war criminals should be tried. At sentencing time, then it would be proper for the court to take into account "circumstances/context." That's how our system is supposed to work.

"Obviously, if a particular form of waterboarding doesn't even qualify as torture, then that changes the question of whether it should be legal."

Obviously, if you're having a fantasy that we only conduct a form of waterboarding that doesn't involve using water to asphyxiate, then you should let us know if that fantasy has any basis in reality.

"the answer to the ethical question will determine the shape that a law about torture should take."

You're entitled to have an opinion about how you would like the law to change ("the shape that a law about torture should take"). What you're not entitled to do is pretend that the law doesn't exist, or pretend that it says something other than what it says.
11.4.2007 4:31pm
Smokey:
J.F. Thomas:
Smokey, don't drag the American military into degradation with you.
Um-m, JFT, I served in the military. In combat. What about you? Inquiring minds want to know.
11.4.2007 4:43pm
jukeboxgrad (mail):
gngeese: "waterboarding was illegal yesterday, and legal today."

Only to the extent that you believe that "legal" is defined as "whatever the president does."

Last time I checked, Congress had not repealed US Code Title 18, Part I, Chapter 113C. Let us know if you've heard otherwise.

The GOP used to be known as the party of law and order. Now, not so much.

"that a court or act of congress has yet to decide the question does not make the legal abortion illegal. the legal process allows for this distinction"

What are you talking about? What do you mean "yet to decide the question?" US courts have ruled waterboarding to be torture on many occasions. And what do you mean by "this distinction?"
11.4.2007 4:44pm
jukeboxgrad (mail):
davod: "Unlike those non-self serving disclosures to the media of alleged FISA violations, investigations into Terrorist financing methods and alleged secret prisons."

You're ducking the question, and missing the point (although I realize you'd like to change the subject). The idea that we've waterboarded 'only' three people is sourced back to anonymous administration leakers. Here's the question: is that a sufficient basis to believe that three is an accurate number?
11.4.2007 4:50pm
noname (mail):
anomie:

I think you're confusing my statement that the question (of whether a particular form of waterboarding should be legal or not) will be different depending on how we classify it (as torture or not) with the idea that the ANSWER to that question will be different. That's not necessarily the case the case, and it's not what I said. If we determine that a particular technique IS torture, then the question of whether it should be legal necessarily implicates the question of whether torture should be legal. If we determine that a particular technique IS NOT torture, then the question of whether it should be legal is different from the question of whether torture should be legal. That's all that meant.

jukeboxgrad:

Let me just respond to your response to my statement that there are a number of questions to be asked here. I think you may be reading a position into the fact that I pointed out those questions that is not really there. All I did was point out that those are the questions at issue. I absolutely did not advocate any particular answer to those questions. (Nor did I suggest that the answers were particularly difficult - for all you know I agree with all of your answers).
11.4.2007 5:08pm
Gaius Marius:
General Tecumseh Sherman aptly noted that "War is Hell!" The goal of any war is to kill and destroy the enemy and do so in greater numbers than they are able to accomplish to you.

Frankly, my earlier point about not taking prisoners from the battlefield is that doing so only distracts the United States from its primary goal in this Jihad: to kill the Jihadists. Look at all these posts about what constitutes "waterboarding" and what does not and what are the exceptions and whether or not the Nazis or Pol Pot engaged in "waterboarding." What a waste of frickin' time, space, and resources.

I believe most, if not all, of the Jihadists in Gitmo were captured on the battlefields in Afghanistan. Capturing them was a mistake. They should have been terminated on the battlefield and I don't give a rat's ass if they had dropped their AK-47 on the ground and had their hands up. They took up arms against the United States and supported their brethren's unprovoked attacks on 9-11. If any Jihadist takes up arms against the United States on the battlefield, there is only one consequence and it is death -- plain and simple. There should be no prisons, no lawyers, no torture, no pseudo-torture, no "waterboarding," no blindfolds, no peanut butter sandwiches for long plane rides, etc. There should only be death for any and all Jihadists.
11.4.2007 5:10pm
jukeboxgrad (mail):
smokey: "The statement was simply that three individuals had been waterboarded"

You should answer the same question I posed to davod. Bush has told us, indirectly, via anonymous leaks, that we've waterboarded 'only' three people (as if the statute grants an exemption for the first three crimes). This is the same Bush who told us (to choose from a very long list of similar examples) that wiretaps require a court order (video). Why would anyone (other than Kool-Aid drinkers) treat this information (the number three, in particular) as credible?

"That's a much more reliable source than C-BS News."

The Killian memos, and the reliability of CBS News, are not relevant to the question I'm asking. I'm not using them as a source for any of the claims I've made. All you're doing is demonstrating how desperate you are to change the subject.

"jbg's rhetorical trick of attempting to discredit the source of the statement"

No one has to resort to any sort of "rhetorical trick" to discredit Bush. He has discredited himself, by lying to us repeatedly.

"there are multiple examples of jbg demanding that others must prove the negative that he has conveniently set up"

If you're claiming that I've asked unfair questions, you've provided an impressive number of examples: zero.

"Then, of course, death row in every state must be promptly eliminated"

This silliness about death row is a complete red herring and has nothing to do with what we're discussing. I already explained this, here. Nice job completely ignoring what I said.

"Why should the treatment be any different for killers who are nothing but heavily armed criminal thugs in Iraq"

Because our law forbids torture, even when the persons being tortured are "killers who are nothing but heavily armed criminal thugs in Iraq" (and this puts aside the fact that we have tortured and killed innocent people).

If you think the law is bad, then advocate for changing it. But that would be hard work, so it's easier to just place the president above the law, right?
11.4.2007 5:18pm
noname (mail):
Gaius:

First, I really like the ambiguity in your use of the word "jihad" in this sentence:
Frankly, my earlier point about not taking prisoners from the battlefield is that doing so only distracts the United States from its primary goal in this Jihad: to kill the Jihadists.


And, what if the prisoner was brought in, unarmed, by some other Afghans who said "this guy is a Jihadist." Should the U.S. military have just shot him on sight?

Finally, I'm pretty sure General Sherman's quote is generally considered a criticism of war, not a justification of its horrors.
11.4.2007 5:20pm
hattio1:
Gaius Marius says;

I believe most, if not all, of the Jihadists in Gitmo were captured on the battlefields in Afghanistan. Capturing them was a mistake.

Your belief doesn't make it so. As has been noted many times, the US was paying bounties to local warlords for bringing in "terrorists." Then they didn't do much if any investigation to see if the people were terrorists, or Al-Qaeda, or Taliban. This in an area where warlords had been fighting each other for centuries. So, essentially we gave the warlords a great opportunity; get rid of an enemy for a long time, and get paid for it. Little surprise that so many took advantage of it.


They should have been terminated on the battlefield and I don't give a rat's ass if they had dropped their AK-47 on the ground and had their hands up. They took up arms against the United States and supported their brethren's unprovoked attacks on 9-11. If any Jihadist takes up arms against the United States on the battlefield, there is only one consequence and it is death -- plain and simple. There should be no prisons, no lawyers, no torture, no pseudo-torture, no "waterboarding," no blindfolds, no peanut butter sandwiches for long plane rides, etc. There should only be death for any and all Jihadists.


I would hope that knowing they weren't all captured on the battlefield with a still-hot and smoking AK-47 at their feet would make you re-think the above sentiments.
11.4.2007 5:21pm
Que ridiculo!:
Frankly, my earlier point about not taking prisoners from the battlefield is that doing so only distracts the United States from its primary goal in this Jihad: to kill the Jihadists.

Even easier than bothering with the military would be to drop nuclear bombs on the Middle East and be done with it. Why not, right?

Look at all these posts about what constitutes "waterboarding" and what does not and what are the exceptions and whether or not the Nazis or Pol Pot engaged in "waterboarding." What a waste of frickin' time, space, and resources.

Those against waterboarding have a pretty clear idea what it is, that there have been no exceptions to its illegality in the past, and that both the Nazis and Pol Pot used it in their authoritarian regimes. It's the pro-torture crowd that tries to find heretofore unknown subtleties and nuances to justify their position. Why is that?
11.4.2007 5:30pm
jukeboxgrad (mail):
junk: "There is a specific law that specifically makes waterboarding illegal if carried out by MILITARY personnel. That law is part of the UCMJ. That law does NOT apply to NON-Military interrogators."

Yes, UCMJ perhaps does not apply to "NON-Military interrogators." But torture is outlawed not just by UCMJ, but also by federal statute. The relevant statute is here. This statute makes no exemption for "NON-Military interrogators." The law applies to any "national of the United States" who commits torture.

Since your morality permits being pro-torture and anti-law, it's no surprise that your morality also permits making things up.
11.4.2007 5:32pm
jukeboxgrad (mail):
noname: "for all you know I agree with all of your answers"

Fair enough. I apologize for misinterpreting you. But if you do agree with the answers, it would be helpful to plainly say so.
11.4.2007 5:39pm
jukeboxgrad (mail):
gaius: "They should have been terminated on the battlefield and I don't give a rat's ass if they had dropped their AK-47 on the ground and had their hands up."

Needless to say, what you're advocating is a war crime. Simple question: should we formally withdraw/repeal all our treaties and statutes regarding war crimes, or should we just pretend those agreements and laws don't exist?
11.4.2007 5:45pm
Porkchop:
JBG,

I admire your energy as well as your principles. :-) Run into any brick walls lately?
11.4.2007 6:01pm
Pluribus (mail):
JunkYardLawDog wrote:

The fact we've gone 7 years without being hit again proves the overall effectiveness of waterboarding when appropriate and fighting the enemy over there instead of over here.

The late Alexander King had a Buddhist friend who always said a little prayer when he left King's apartment: "May this house be safe from tigers." After three years, King grew tired of the mantra and asked angrily, "What is the meaning of this idiot prayer?" "Well," said the friend, "have you been bothered by any tigers lately?"

So waterboarding is what has saved us from another 9/11? And here I thought it was all that electronic surveillance without warrants, and the security checks at airports, and the military invasion of Afghanistan, and the creation of the Department of Homeland Security, and tying up al Qaeda on the ground in Iraq. But it was waterboarding all along. And saying "may this house be safe from tigers" is what protected King's apartment from vicious animal attacks.

Thanks for correcting me.
11.4.2007 6:35pm
Observation:
If waterboarding (in its various forms) is indeed not torture, as the Bush administration and half of Congress seems to believe, then clearly Justice demands that we apologize for our own illegal actions in punishing the Japanese waterboarders whom our tribunals convicted of war crimes after World War II. Perhaps we also owe their families compensation. I hope and pray that George Bush will lead the way on this !
11.4.2007 6:40pm
jukeboxgrad (mail):
pork, thanks for your kind words. It's true that the wackos who show up here saying wacko things are indeed generally a brick wall, impervious to both logic and morality (notice how many of them spoke up only once or twice, and are now making the sound of crickets). But I'm not really addressing them. I'm addressing the lurkers. It's likely that there are a few that are on the verge of recovering from wackiness (as many have since 11/2/04), and are happy to have a little help.
11.4.2007 6:48pm
Pluribus (mail):
Gaius Marius wrote:

I believe most, if not all, of the Jihadists in Gitmo were captured on the battlefields in Afghanistan. Capturing them was a mistake. They should have been terminated on the battlefield and I don't give a rat's ass if they had dropped their AK-47 on the ground and had their hands up.

Appatrently even the Bush administration doesn't share your lust for innocent blood.

I say innocent, because everybody found in Iran and Afghanistan is not a jihadist--some are merely the enemies of the local warlords, pissed because somebody is interfering with their opium harvest. Or Baathists who will brook no interference with their latest oil scam, and who are delighted to have the U.S. kill their opponents rather than having to do it themselves. Why waste your ammunition when the super power can do your killing for you?

But there are people in the Defense Department, the State Department, and the Department of Justice who still climg to the quaint concept of obeying the law--including the law of war--and separating the guilty from the innocent before mowing them down. Even as we speak, some Americans in Iraq are being tried for murder. Deliberate killing of unarmed prisoners is murder all over the world, even in the Bush administration.
11.4.2007 6:52pm
noname (mail):


The late Alexander King had a Buddhist friend ...

Thanks for correcting me.


"Lisa, I would like to buy your rock!"

Oh, The Simpsons, is there nothing you can't teach us?
11.4.2007 7:06pm
jukeboxgrad (mail):
junk: "The fact we've gone 7 years without being hit again proves the overall effectiveness of waterboarding"

It's barely 6 years, but let's not quibble about your problems with single-digit arithmetic (which go hand-in-hand with your inability to read and comprehend a short, simple statute). And let's put aside the fact that about 4,000 of us have indeed been "hit" in Iraq.

The WTC was first hit about a month after Clinton took office. We then went through the rest of Clinton's term (almost 8 years) without suffering another domestic attack (unless you want to claim that Timothy McVeigh is part of the vast Islamofascist conspiracy). This obviously proves "the overall effectiveness" of having a president who loves hamburgers and plays the saxophone.

Apologies to pluribus for borrowing his idea.
11.4.2007 7:14pm
MarkField (mail):

It's true that the wackos who show up here saying wacko things are indeed generally a brick wall, impervious to both logic and morality (notice how many of them spoke up only once or twice, and are now making the sound of crickets). But I'm not really addressing them. I'm addressing the lurkers.


Exactly. In fact, these recent discussions here encourage me. Not only are the defenders of torture becoming fewer and fewer, their arguments are becoming more and more, well, tortured. We're gonna win.
11.4.2007 7:15pm
MarkField (mail):

I believe most, if not all, of the Jihadists in Gitmo were captured on the battlefields in Afghanistan.


Your belief is false. The Seton Hall study demonstrated that the vast majority of those in Gitmo were "captured" far from the battlefield.
11.4.2007 7:22pm
Smokey:
jbg:
This silliness about death row is a complete red herring...
No, it isn't. The principle is exactly the same: the threat of imminent death. Maybe we should turn ourselves in to the UN, huh?

But rather than argue, I'm gonna savor that Gaius Marius post again. Warms the cockles of my heart, it does [although I probably wouldn't shoot someone trying to surrender; maybe I have a character flaw or something]. At least GM puts his cards on the table and doesn't waffle. He knows the difference between the guys in the white hats and the guys in the black hats. And you know what? I think most Americans would agree with him more than with the hand-wringers here. Why don't we just put it to a vote of the American people?

This is war, folks. War is never nice, it's always shitty. If a technique gets results and doesn't hurt anyone in its application, we need to use it more, not less.

Who has one of the many [current] definitions of 'torture?' There's the rub. Because every definition of torture I've seen can be applied more or less to things that happen to criminals in U.S. jails. I don't think of Iraqi criminals as being any different than American criminals - they're both criminals, see? In Iraq, they're not 'insurgents,' they're just bad people who resent the fact that democracy and a free election didn't go their way [with meddling by Iran and Syria thrown in for good measure]. They're murdering people, mostly innocent civilians. Thousands and thousands of them. Maybe those murdered civilians' families should have a say in whether waterboarding should be used to find the culprits. What do you think? Is that a great idea, or what?

Oh, oh. Maybe I've said too much now. Libs might start arguing that criminals in U.S. jails are being 'tortured.'

Free Mumia, eh?
11.4.2007 7:31pm
Frog Leg (mail):
There seem to be 2 defenses here on waterboarding: (a) the definition of torture is vague; (b) it is a necessity; and (c) they all deserve to be dead anyway , so they should be happy that they are just being waterboarded. Not a single defender has honestly confronted the historical record, that there have been convictions based on this exact same practice.

Can any defender do this? Please try to make a clean legal argument as to why the past convictions are inapplicable law. If evasion is the best argument, it's a pretty good hint that the argument is wrong.
11.4.2007 8:00pm
J.N. (mail):
junk: "The fact we've gone 7 years without being hit again proves the overall effectiveness of waterboarding"

Not only is jukeboxgrad right to cite the Clinton years, but we were attacked after 9/11 - nobody seems to mention the anthrax attacks that, like bin laden, seem to have gone away.

Do we have any proof that waterboarding has given us more good information then bad information?
11.4.2007 8:05pm
jukeboxgrad (mail):
smokey: "The principle is exactly the same: the threat of imminent death"

Maybe I need to use smaller words, or a thicker crayon. You're simply ignoring what's already been said.

Let's see if I can make it even simpler. Yes, our federal anti-torture statute defines torture as (among other things) "the threat of imminent death." You're fatuously suggesting that prisoners on death row are in a position to invoke this statute, and claim they are being tortured. Uh, no. Why? Because the statute makes an explicit exception for pain or suffering "incidental to lawful sanctions." So when I say to the death-row inmate "come with me, we are about to give you your lethal injection," it's true that I am imposing "the threat of imminent death," but I am doing this "incidental to lawful sanctions," because the lethal injection has been expressly called for by law.

Do you always need everything explained twice? Then again, maybe even twice isn't enough.

"At least GM puts his cards on the table and doesn't waffle."

He hasn't really put his cards on the table until he answers the simple and fair question I asked here.

"If a technique gets results and doesn't hurt anyone in its application, we need to use it more, not less."

Even if it's a violation of our own laws? Hopefully you'll put your "cards on the table" and let us know how you feel about the rule of law.

By the way, the idea that waterboarding "doesn't hurt anyone" is quite remarkable. I've never heard anyone suggest that asphyxiation isn't a form of "hurt." And the folks who do it would have no interest in doing it if it actually didn't "hurt," because the "hurt" is precisely the source of whatever actual or assumed effectiveness the procedure has.

"Who has one of the many [current] definitions of 'torture?' "

The relevant statute doesn't have "many" definitions of torture. The definition has several elements, but it's fairly short and simple. I realize it's not simple enough for you to grasp, but that's not saying much.

"every definition of torture I've seen can be applied more or less to things that happen to criminals in U.S. jails"

You should explain how this definition "can be applied more or less to things that happen to criminals in U.S. jails." Your one pathetic attempt to do that (so far) required persistently pretending that the law didn't make an exception with regard to "lawful sanctions."

"Maybe those murdered civilians' families should have a say in whether waterboarding should be used to find the culprits. What do you think? Is that a great idea, or what?"

Yes, it's a great idea to suggest that Americans should feel free to violate federal criminal law as long as they can find an Iraqi who wants them to.

You're obviously a great legal mind. The only mystery is why Bush nominated Mukasey and not you.

jn: thanks for reminding us about the anthrax attacks, which have been sent down the memory hole. Good point.
11.4.2007 8:27pm
Que ridiculo!:
Who has one of the many [current] definitions of 'torture?' There's the rub.


Following Frog Leg, I'd like to know why those who are pro-torture refuse to even examine the definition of torture codified into U.S. law. Combine this definition with the "interrogation techniques" we have prosecuted people for using in the past as well as those from police states in the past, and the meaning of torture is pretty obvious. Why remain so willfully ignorant, Smokey?

BTW, there are a lot of people who are against both the death penalty and torture. Why do you think you are perceiving some kind of hypocrisy?
11.4.2007 8:33pm
e:
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment uses the same language of the UDHR Art 5.

What is not torture, but rather "Other Cruel, Inhuman or Degrading Treatment?" Why the insistence on fitting an entire category of treatment, which may have variations not considered here, temporary and without lasting effect, into the former classification? Is it not enough to say that it is either cruel or inhuman? If necessity allows for some of these other generally prohibited treatments, as international law seems to allow, I'd be interested in one of the waterboarding righteous come up with a treatment within the only mostly banned category, and which might be justified.

Should we just view our domestic 5th Amendment interrogation doctrine as universal, even when we are not talking about evidence for prosecution but rather tactical or even strategic national security information? If so, is there any argument here for making soldiers give some Geneva variant of Miranda warnings to battlefield captures? Why not, especially if they're not uniformed (and therefore presumably not trained in Geneva rights)?
11.4.2007 8:38pm
Benjamin Davis (mail):
The fundamental difference between people in prison subject to a punishment and anyone picked up in this armed conflict is that the persons in prison were subject to a trial before a neutral judge in federal or state court. Their were crimes defined in the law and evidence was adduced beyond a reasonable doubt that they were guilty of that charge. They have the right to appeal flaws in that process and may be able to succeed on appeal. The punishment to which they have been convicted is detailed in the law that was voted by the state or federal legislature. None of those laws foresee torture as a punishment. While certain crimes by adults are subject to the death penalty, none of our laws permits torture as a punishment.

Someone who is picked up in an armed conflict and tortured is being treated in violation of those laws passed at the federal level. The prisoner analogy is a red herring. More crap piled higher and deeper.

Best,
Ben
11.4.2007 8:56pm
Benjamin Davis (mail):
WHERE ARE THE AMERICANS?
Call your senators (202) 224-3121. Call Schumer and Feinstein's office. Send an e-mail at www.senate.gov. Stop Mukasey and stop torture.
Best,
Ben
11.4.2007 9:00pm
Brian Macker (mail) (www):
OK, I never read these various laws that have been linked here. I think common sense is that waterboarding is torture. I see from the links that legally it is torture. I see from this link that use of torture by any US citizen, or conspiracy to commit such torture is illegal (regardless of local).

From current news stories I understand that some US government employees conspired or committed torture on three individuals.

As far as I can tell a very serious crime has been committed by this administration. So why aren't heads rolling? Surely this is worse than Watergate.
11.4.2007 10:17pm
Brian Macker (mail) (www):
"This silliness about death row is a complete red herring..."
No, it isn't. The principle is exactly the same: the threat of imminent death. Maybe we should turn ourselves in to the UN, huh?
He's right you are being silly. Look up the definition of imminent. I added the link to make it easy for you. Holy cow.
11.4.2007 11:13pm
Hewart:
The next time someone ever asks me how it is possible that otherwise moral people throughout history could have turned a blind eye to the evil perpetuated by their national leaders, it may be instructive for them to view this discussion thread and see, firsthand, how fine, intelligent folks can so easily rationalize and downplay barbaric practices against their fellow man in the pursuit of "national security".

Honestly, this whole "debate" stinks of evil. That so many people engaged in it seem to have lost the moral clarity to recognize the stench of evil is testimony to the fallen nature of Man and ultimately poor prospects for human civilization.
11.4.2007 11:18pm
JunkYardLawDog (mail):
jukeboxgrad (mail):

Yes, UCMJ perhaps does not apply to "NON-Military interrogators." But torture is outlawed not just by UCMJ, but also by federal statute.

Those statutes however don't give a definition for torture that includes waterboarding specifically unlike the UCMJ, so its you and the several like you that followed who need to learn to read simple sentences for comprehension.

In fact since those statutes definitions omit specific mention of waterboarding unlike the UCMJ, by common statutory and contract analysis a negative inference arises in favor of the argument that these torture statutes left out waterboarding specifically for the reason they didn't want waterboarding included.

This is further confirmed by the fact that some in the Senate just this year tried to pass a bill that would make waterboarding illegal for even NON-Military interrogators. Of course the Senate wouldn't have to pass a new law to make something illegal if it were already illegal, and since that bill was defeated and did NOT pass the negative inference is that the Senate does NOT want waterboarding to included in the definition of torture.

As to the japanese guy prosecuted for waterboarding. If you get the facts he prosecuted for far more than waterboarding. He was prosecuted for denying food and medical aid to the prisoners. Stealing their food and medical aid, beatings and other kinds of REAL torture. Also his water torture wasn't the kind we LEGALLY use in very limited circumstances.

So your points about we once prosecuted somebody for this is just hogwash.

As for this JAG dipsh*t and his JAG off companion Lindsey Graham, I'm afraid their qualifications are no more than some country bumpkin county assistant DA, and forgive me if I don't want some pencil neck geek like Lindsey Graham setting national constitutional law policy at a time of war based upon their vast experience in Mayberry county going after the likes of Otis.

Says the "Dog"
11.4.2007 11:59pm
Laura S.:
Jukeboxgrad writes:

Then you should call on our government to apologize to the Japanese officers who we imprisoned for doing it to US aviators.

I've already explained to you that is possible to draw distinctions between what the Japanese did (violation of international norms) and what the USC may or may mean. Your continued use of the example suggests you are not arguing in fairness.


But you're making it clear that you think it's fine to ignore the law as it is written, and as it has been enforced by US courts for decades.

Actually that isn't what I think. Your case that waterboarding is (T)orture so far amounts to a citation to the Japanese. Yes, that act was torture, but it was (T)orture under international legal norms relating the treatment of POWs. Consequently you have yet to present us evidence that waterboarding is (T)orture within the confines of the USC. Although I concede that it is torture, little 't', just like my commute is.
11.4.2007 11:59pm
Que ridiculo!:
Although I concede that [waterboarding] is torture, little 't', just like my commute is.

Of any in this thread so far, this odious comment gives off the strongest stench of what Hewart mentioned above. Truly revolting that someone could possibly compare forcing someone to nearly drown to a commute, of all things. Jesus.
11.5.2007 12:29am
e:
Hewart - you may need to explain yourself a little better. Exactly what is evil? That the law is not always about morality? That we should try to actually define terms that are debated and to some extent vague? That warfare is inherently evil and therefore has no justification? That we might favor people on one side of a political border over those on the other side? Is it less evil to assume that people won't change their minds and just stop trying to communicate? Is it evil that people have different beliefs than you?

Thanks

Another evil hypo as I clarify things in my mind. Under the US definition, the threat of death is apparently torture. Would it matter if an interrogator told the prisoner truthfully that he would not be harmed? What if he described the treatment, indicating that there would be fear but no pain or injury? I still think the use of "severe" in definitions is problematic, that training use is instructive, and that waterboarding better belongs in "other" category of generally prohibited treatments, but I'm still looking for persuasion against that inclination. War is different from crime, and not recognizing that in int'l law will lead people to keep the difference mostly out of scrutiny before custody.
11.5.2007 12:43am
e:
Que - I doubt Laura is worried about courts invoking torture for commutes and bad haircuts, but the point about definitions gone wild is valid, as illustrated by the assault = torture nonsense in another thread. Questioning without a cozy chair and tea cause emotional distress for some gentle souls who just happened to be in the wrong place. Debating the wrong side on unsavory topics, like my supposed guilt or complicity, especially from an infidel captor, is evil. Confinement degrades, this must all be torture. And if it does become so meaningless and dilute, we and the law will start to recognize exceptions, necessity.
11.5.2007 12:52am
Que ridiculo!:
"Definitions gone wild"--quite peculiar how the definition as set in U.S. law was not an issue for some before Bush decided waterboarding was legal. 9/11 changed everything.
11.5.2007 1:12am
Laura S.:

Of any in this thread so far, this odious comment gives off the strongest stench of what Hewart mentioned above. Truly revolting that someone could possibly compare forcing someone to nearly drown to a commute, of all things. Jesus.

Congrats, you win the missing the point prize. The point was that JukeboxGrad has only managed to prove a very weak statement.

I don't believe that waterboarding is a technique to be used lightly--if ever. Certainly it is in a different class from a commute, but Jukeboxgrad has not managed to advance the thesis that it is (T)orture; which was my point.

My apologies if you found my rhetoric to be in poor taste, I meant only to belittle JBG's argument, not the horror of waterboarding.
11.5.2007 1:44am
davod (mail):
e:
Degrading covers everything else that a prisoner could conceiveably object to. It is not about what you do, it is about what the prisoner feels about what you do.
11.5.2007 2:41am
Jonathon-RossBBC (mail) (www):
Nobody wants to become the talk of the hotel staff and especially not over a [url=http://www.youtube.com/v/XBe6Zv37cJk]penis enlargement[/url] device.
11.5.2007 4:32am
cheapcigar (mail) (www):
Very nice this blog =)
11.5.2007 6:23am
Porkchop:
I don't know whether there is any possibility of moving the hearts and minds of supporters of waterboarding as "not torture," but in the hope that there still is, I recommend this post from the Small Wars Journal blog. Malcolm Nance, is among other things, a former SERE instructor. The title is "Waterboarding is Torture… Period." The man appears to have a pretty good idea what he is talking about.

For reasons I can't figure out, the linking feature does not work from my computer, so once again here is the link as text in two parts because of length:

Part 1 = http://smallwarsjournal.com/blog/2007/
Part 2 = 10/waterboarding-is-torture-perio/#c000923"

Specifically, he states:


There is No Debate Except for Torture Apologists

1. Waterboarding is a torture technique. Period. There is no way to gloss over it or sugarcoat it. It has no justification outside of its limited role as a training demonstrator. Our service members have to learn that the will to survive requires them accept and understand that they may be subjected to torture, but that America is better than its enemies and it is one's duty to trust in your nation and God, endure the hardships and return home with honor.

2. Waterboarding is not a simulation. Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.

Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning. How much the victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim's face) and the obstinacy of the subject. A team doctor watches the quantity of water that is ingested and for the physiological signs which show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.

Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration --usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death. Its lack of physical scarring allows the victim to recover and be threaten with its use again and again.

Call it "Chinese Water Torture," "the Barrel," or "the Waterfall," it is all the same. Whether the victim is allowed to comply or not is usually left up to the interrogator. Many waterboard team members, even in training, enjoy the sadistic power of making the victim suffer and often ask questions as an after thought. These people are dangerous and predictable and when left unshackled, unsupervised or undetected they bring us the murderous abuses seen at Abu Ghraieb, Baghram and Guantanamo. No doubt, to avoid human factors like fear and guilt someone has created a one-button version that probably looks like an MRI machine with high intensity waterjets.


11.5.2007 9:53am
Richard Aubrey (mail):
Waterboarding, IMO, would not be so contentious if we didn't have a recent history of anti-administration types hauling in stuff which wouldn't raise an eyebrow at fraternity initiations, in order to punch up the numbers.
There was red ink as fake menstrual blood, wrapping in an Israeli flag, reports of pop music--which may be apocryphal and merely ways of condemning one performer or another (Celine Dion??)--and irregular diets.

If we had a history of honest debate, instead of, as Instapundit says, any weapon any time against the Bush administration, people would be less defensive on either side of the waterboarding issue.

And, just as the four million hard core homeless found themselves accomodations on or about Jan 21, 1993, this issue will disappear like the morning dew with the next dem president's inauguration irrespective of whether or not it continues--or, in this case, starts up again.
11.5.2007 9:57am
TyrantLimaBean:
Does anyone know whether, historically, the law of armed conflict allowed for torture of hostes humani generis? I know they could be summarily executed - but of course that doesn't speak to torture.

Also, I think there is some confusion here in that supporters of waterboarding someone like KSM don't need to argue that it is legal. You can, of course, argue it is illegal and still the right thing to do. I'm sure everyone read Aristotle - if not Bentham or Mill.

Much like Hillary will only say it should not be the policy of the US to waterboard, but does not say it should not be done (IIRC). I've talked with several JAGs who agree. They say if you make it the policy, then there may be rampant abuse. But, if illegal, responsible people weighing the consequences (i.e. nuclear bomb going off and prisoner knows where it is) will still violate it, but only when they think the stakes are high enough to justify risking legal punishment.

I, for one, am glad that torture is illegal, but also glad that there are people in our government who will break the law and do the Jack Bauer thing when circumstances are so dire as to warrant it. As for whether waterboarding is torture, I think Mukasey has it right - I'd need more information (and want to read all relevant OLC memos) to make an informed decision.
11.5.2007 10:58am
Seamus (mail):
One other question: since we know that Saddam Hussein routinely tortured his prisoners and enemies, did his minions use waterboarding? Did Pol Pot? Does Castro? If not, then I would suggest that waterboarding is likely NOT torture.

Yes, Pol Pot used waterboarding.
11.5.2007 11:29am
jukeboxgrad (mail):
brian: "Look up the definition of imminent."

You are correct that the folks raising the silly death-row comparison are pretending the statute doesn't say "imminent." However, it's important to realize that they are also pretending that the statute doesn't make an exception with regard to "lawful sanctions." I've already explained this in this thread, multiple times, and as far as I can tell they are ignoring this point.
11.5.2007 11:56am
jukeboxgrad (mail):
junk: "Those statutes however don't give a definition for torture that includes waterboarding specifically unlike the UCMJ … In fact since those statutes definitions omit specific mention of waterboarding unlike the UCMJ"

You are claiming that the UCMJ gives "a definition for torture that includes waterboarding specifically." That is, you are claiming that UCMJ includes "specific mention of waterboarding." (You are doing this for the purpose of constructing a loophole for "NON-Military interrogators.")

The UCMJ can be browsed and searched here. It can also be found in this pdf. Waterboarding (using that jargon or any other jargon) is mentioned in the UCMJ this many times: zero.

As I have already said: since your morality permits being pro-torture and anti-law, it's no surprise that your morality also permits making things up.

UCMJ, despite your claim, does not include "specific mention of waterboarding." However, it does clearly prohibit waterboarding. This is explicitly acknowledged in a once-secret DOD legal memo. A discussion about that memo (including a link to the memo) is here.

"the Senate wouldn't have to pass a new law to make something illegal if it were already illegal"

It's true that there's no need to outlaw something that's already illegal. The idea that someone would forget this only proves that sometimes Congress does dumb things. However, everyone, including the president, is still required to obey the laws they make.

It's also helpful to consider this asute comment I found here:

A law making waterboarding illegal will be strongly pushed by people in Congress working on President Bush's behalf. Such a law will have the effect of retroactively making waterboarding LEGAL up to the date Bush signs it into law. It will effectively invalidate the current anti-torture statute. And it won't include the secret torture practices that President Bush allows his interrogators to use right now. Nobody will be held accountable for torture done in the past. And torture will continue in the future.
11.5.2007 12:29pm
jukeboxgrad (mail):
junk: "In fact since those statutes definitions omit specific mention of waterboarding … by common statutory and contract analysis a negative inference arises in favor of the argument that these torture statutes left out waterboarding specifically for the reason they didn't want waterboarding included."

You are correctly pointing out that our federal anti-torture statute does indeed "omit specific mention of waterboarding." Duh. That's the way laws are written, and for good reason. There are an infinite number of methods that could be used to murder someone. The vast majority of those methods do not enjoy "specific mention" in our statutes. Murder is still murder even if you develop a clever method that has not been enumerated in a "specific mention." Likewise for torture, and for all sorts of other crimes, where statute, history and common sense provide more than enough of a framework to understand when a certain activity falls within the definition of the crime.

The problem with making laws absurdly specific is that this only encourages clever and immoral people to invent variations on those specifics, as a way to circumvent the law. A law expressly aimed at waterboarding invites future torturers to invent some clever new method, and then argue that it must be legal since it's not expressly prohibited. That's exactly the argument you're presenting now: that it's legal since it's not expressly mentioned in the statute.

This is the doctrine of inclusio unius est exclusio alterius: "where law expressly describes [a] particular situation to which it shall apply, an irrefutable inference must be drawn that what is omitted or excluded was intended to be omitted or excluded" (Black's Law Dictionary).

There is no doubt that waterboarding is covered by our federal anti-torture statute, which forbids imposing "the threat of imminent death" (except when "incidental to lawful sanctions," which is why the death-row comparison is a fatuous red herring). Waterboarding is form of asphyxiation, and there is no doubt that asphyxiation presents "the threat of imminent death."

If you were an honest person, you would simply say you think torture should be legal, and that you think it's OK that Bush has put himself above the law. But you're a partisan hack, so instead you're making things up.
11.5.2007 12:32pm
jukeboxgrad (mail):
junk: "As to the japanese guy prosecuted for waterboarding"

We don't need more proof of how dishonest you are, but you decided to give us some anyway. You are implying ("the") that there was just one "japanese guy prosecuted for waterboarding." Wrong. Wallach's analysis makes clear that there were many. And he refers to other precedents in US courts, outside of the situation with Japan. You seem to think that you can get away with misrepresenting what Wallach said, just as you misrepresent what's in the UCMJ.

"he prosecuted for far more than waterboarding"

It's true that the prosecutions of the Japanese often included other charges, aside from waterboarding. But our courts ruled that the waterboarding itself was a form of torture. I guess you didn't actually read Wallach, or you're hoping no one else will.

"his water torture wasn't the kind we LEGALLY use in very limited circumstances"

This is from the testimony of an American aviator who was waterboarded by the Japanese:

I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I'd get my breath, then they'd start over again.


The description in that testimony corresponds exactly to what we currently understand as waterboarding. For example, compare it with the definition offered by Brit Hume and Mort Kondracke (video available here).

If you can explain where you see a difference, that would be helpful.

"As for this JAG dipsh*t"

Once again you are using a gratuitous singular to mislead. The number of JAGs on record disagreeing with you is at least nine (eight in that letter, plus Wallach). The burden is on you to explain why they are "dipsh*t[s]," and you are not. And as far as I can tell, this many JAGs have come forward to claim that waterboarding is legal: zero.
11.5.2007 12:47pm
jukeboxgrad (mail):
junk, I have a few questions for you. Your twisted and dishonest argument is supposed to convince us that waterboarding is legal if done by "NON-Military interrogators." If so, then why is Bush refusing to admit that he has done it (instead he's using leaks to convince us that he's 'only' done it three times)? No problem if it's legal, right? And why is Mukasey being so coy? Why not just say it's legal if done by "NON-Military interrogators?" No problem if that's true, right? And why has Hayden banned it it? Why do that if it's legal?
11.5.2007 12:53pm
jukeboxgrad (mail):
laura: "I've already explained to you that is possible to draw distinctions between what the Japanese did (violation of international norms) and what the USC may or may mean."

If you've explained how asphyxiation is not a "threat of imminent death," and therefore not a violation of our federal anti-torture statute, you should tell us where that explanation is hidden, because I can't find it anywhere in this thread. Likewise if you've explained how waterboarding (as practiced by us and/or the Japanese) is not a form of asphyxiation.

"Your case that waterboarding is (T)orture so far amounts to a citation to the Japanese"

Uh, no. Wallach has a lot to say about US court precedents aside from the situation with the Japanese. And we don't even need Wallach to understand the plain English in the statute, which I referred to just above.

"you have yet to present us evidence that waterboarding is (T)orture within the confines of the USC"

You seem to be asking me to present you with evidence that waterboarding is a form of asphyxiation, or you're asking me to present you with evidence that asphyxiation represents a "threat of imminent death." Or both, maybe. Which is it? I can't think of any other possibilities.

"I concede that it is torture, little 't', just like my commute is."

That remark is something other than deeply loathsome and asinine provided that your commute requires you to survive without access to oxygen.
11.5.2007 1:03pm
jukeboxgrad (mail):
e: "Questioning without a cozy chair and tea cause emotional distress for some gentle souls"

The portion of the human race that can't survive without "a cozy chair and tea" is something like this: zero. The portion of the human race that can't survive asphyxiation is this: 100%. Surely you can understand such a simple distinction.

If you think our anti-torture statute is dangerous, or vague, or whatever, then you should advocate changing it. But as far as I can tell, you're saying it should be ignored.

"if it does become so meaningless and dilute, we and the law will start to recognize exceptions, necessity."

If you think our anti-tortute statute should "recognize exceptions" that it doesn't currently recognize, then you are free to advocate for that. But if you advocate simply ignoring the law, what that makes you is an enemy of democracy.

By the way, the way our system is supposed to work is that a jury gets to consider the specific circumstances and then perhaps "recognize exceptions." Our war criminals should be brought before a jury. If you're on that panel, then you will have a chance to perhaps "recognize exceptions."
11.5.2007 1:13pm
r78:

The fact we've gone 7 years without being hit again proves the overall effectiveness of waterboarding when appropriate and fighting the enemy over there instead of over here.


Yes, 3,000 dead and tens of thousand of wounded soldier are a small price to pay for keeping a smaller number of NY Bond Traders safe.

And your "reasoning" also demonstrates the validity of kidnapping innocent Canadians and sending them off to torture in Syria - had we not done that, who knows what devastation would have been visited on our soil.
11.5.2007 1:40pm
e:
Once again you are misstating or guessing wrong about where I stand. I do not think there should be exceptions for torture, even if it can be effective in some circumstances. That is also the position we are obligated to under treaty, for torture under the int'l definition. There is no justification to castrate, burn, or cause long term suffering. It is a lot easier to ensure that complete prohibition remains if we do not expand the definition. Your certainty seems to miss the nuance and vagueness in the law and in the variations of possible practice. It also seems to miss the point that torture is not the only banned type of treatment.


Anticipation of death is a strong point under the domestic definition, but again I ask if it makes a difference if the captor warns that it is safe and has not caused death in its current incarnation. Is there also a matter of degree where someone in a waterless cell might fear of thirst. Humans need water to survive, and being trapped without the ability to get water is torture of an even more lasting and miserable sort. Until we realize that the captors are showing up to provide.
11.5.2007 1:59pm
Anderson (mail):
The fact we've gone 7 years without being hit again proves the overall effectiveness of waterboarding when appropriate and fighting the enemy over there instead of over here.

Actually, we've gone without another attack for 6 (not 7) years because I've been sticking pins in my Osama doll every day since 9/11. No, no, don't thank me ... it's my duty as an American.

--Oh, but wait? You wanted evidence of the causal connection between my work to keep America safe and the absence of further attacks? Since when is *that* the standard?
11.5.2007 2:06pm
Anderson (mail):
but again I ask if it makes a difference if the captor warns that it is safe and has not caused death in its current incarnation

Because the kind of person who would waterboard someone can be trusted not to lie about how safe it is, right?

IOW, we need waterboards with prominently displayed safety labels. The CPSC should get right on that.
11.5.2007 2:10pm
e:
And again the question is not answered. If a captive distrusts his infidel keepers enough, isn't he always in fear of death when he resists questions. I know I'd be peeing my pants from fear of decapitation in some situations, even if my captor had no intention or made no clear threats. If he provided a copy of my holy book showing some respect for my existence, I might relax a bit. I realize people think that soft approach should be the only way, but miss the point that some bad cop behavior makes the good cop more successful. With the coverage of waterboarding, US soul-searching, and internal discipline of soldiers for abuses, I have little doubt that captives have assurance that they'll survive with life and limbs intact.
11.5.2007 2:39pm
PLR:
With the coverage of waterboarding, US soul-searching, and internal discipline of soldiers for abuses, I have little doubt that captives have assurance that they'll survive with life and limbs intact.

I think you know more than you are telling. One way for us to find out will be to stage a mock execution of you, every day, until we get the truth out of you. Maybe a waterboard, maybe some Russian Roulette, there are lots of cool ways out there.

Unless you're the weak-kneed sort (like Dan Levin maybe), I can't imagine that you would suffer any permanent harm. In fact, by the third day I'm sure you'll be looking forward to it.
11.5.2007 3:16pm
Anderson (mail):
With the coverage of waterboarding, US soul-searching, and internal discipline of soldiers for abuses, I have little doubt that captives have assurance that they'll survive with life and limbs intact.

Okay, you've demonstrated that you're beyond ridicule.

Of course, that would have been a bad guess by the Iraqi general we murdered with some other "coercive interrogation methods." But now that such misdeeds have been reported, and some bottom-feeding Reservists sent to jail for a few years, anyone in the general's position would, "little doubt," feel safer?
11.5.2007 3:31pm
jukeboxgrad (mail):
e: "It is a lot easier to ensure that complete prohibition remains if we do not expand the definition."

I'm not sure who you think is trying to "expand the definition." US courts have treated waterboarding as a form of torture for a long time. Nothing new about that.

"Your certainty seems to miss the nuance and vagueness in the law and in the variations of possible practice"

I could see how other procedures (other than waterboarding) might raise questions about "nuance and vagueness." But we're not talking about other procedures. We're talking about waterboarding. I don't see anything vague in the words "threat of imminent death." And "variations of possible practice" are not relevant unless someone can show that we are limiting ourselves to an exotic variant of waterboarding that does not entail asphyxiation. Waterboarding entails asphyxiation which entails threat of imminent death. I don't see where there is room for anything other than certainty in that equation.

"I ask if it makes a difference if the captor warns that it is safe and has not caused death in its current incarnation"

It's hard to imagine why a captive would unquestioningly trust such assurances (as Anderson pointed out). Every human knows that suffocation leads to death, fairly quickly. Waterboarding is a form of suffocation, and the whole point of waterboarding is to extend the suffocation indefinitely if the person does not submit.

By the way, it makes no sense for the captor to offer such an assurance. The captor is saying 'I'm going to suffocate you until you submit (i.e., answer my questions)' and also simultaneously saying 'I will stop suffocating you before you die.' Kind of a mixed message, isn't it?

"being trapped without the ability to get water is torture"

Yes, depriving a person of water for an extended period of time is obviously a form of torture. So are lots of other things. The list is long. Humans are ingenious. What's your point?

"If a captive distrusts his infidel keepers enough, isn't he always in fear of death when he resists questions"

Only if the captor is using a procedure (like waterboarding) that will unquestionably lead to death in a rather short period of time. Please recall that the statute uses the word "imminent."

"I know I'd be peeing my pants from fear of decapitation in some situations, even if my captor had no intention or made no clear threats."

The statute cannot protect someone, and does not try to protect someone, who experiences fear for no reason. You might be an exceptionally fearful person, but the statute is not unduly concerned with that. The statute understands that all humans, not just exceptionally fearful ones, will experience great suffering when (involuntarily) facing the threat of imminent death.

"some bad cop behavior makes the good cop more successful"

If you think our statutes don't provide enough latitude for "some bad cop behavior," then you should advocate for change to the statutes. That's called democracy. When you advocate for the law to be ignored, or for lawbreakers to go unpunished, that's called lawlessness, which is the enemy of democracy.

"I have little doubt that captives have assurance that they'll survive with life and limbs intact."

Your "little doubt" is based on ignorance, because we've beaten to death innocent people.
11.5.2007 4:00pm
Thomass (mail):
Observation:

"If waterboarding (in its various forms) is indeed not torture, as the Bush administration and half of Congress seems to believe, then clearly Justice demands that we apologize for our own illegal actions in punishing the Japanese waterboarders whom our tribunals convicted of war crimes after World War II. Perhaps we also owe their families compensation. I hope and pray that George Bush will lead the way on this !"

Is that all they did?

Anyway, I entered the discussion when people discounted the argument that it isn't really torture if you'd consent to have it done to yourself (which I tend to agree with). Someone raised the valid issue of frequency. If it is done repeatedly it could rise to torture... I agreed.

But the dividing line (between method and frequency) still comes down to personal opinion in my view. Its torture, IMO, if I were to be subjected to it and would consider it such were it done to me and/or is it something so bad I wouldn't tolerate it were it done to me.

If I was captured... and had vital information to the enemy... and ALL they did was waterboard me once or twice.... Trust me, once the conflict was over I would not be pushing for the interrogators to be punished... I'd actually be thankful they stopped there (assuming I didn't talk)...
11.5.2007 4:06pm
jukeboxgrad (mail):
thomass: "Is that all they [the Japanese] did?"

No. But the US courts and tribunals ruled that the waterboarding itself was torture. That's the relevant fact, because torture is a felony, under US law.

By the way, there are some questions waiting for you. You're repeating yourself instead of responding to the response that has already been given.
11.5.2007 4:42pm
Smokey:
Hi folks,

Thought I'd check back in and see how it's going since yesterday, and I see that no one has convinced anyone of anything.

For the record, I am still fully in favor of using waterboarding. Some folks are not. Fine, they don't have to use it. But I like the concept of getting info without hurting anyone in the process.

And I also like being on the other side of the discussion from folks like jbg [29 frantic - and unread, by me, at least - posts so far! But he's convinced absolutely no one else, either, from the looks of things]. And guys like...

Daniel Chapman:
"...who are YOU voting for in the upcoming primaries? I'm sitting them out because obviously Bush is going to refuse to step down anyway..."
For some reason, it makes my day knowing there are folks out there who actually believe that sort of thing. Puts me right in the center of the Bell curve, it does.

Now, if we could only hook up the Altamont Pass turbines to the arm-wavers who are so frightened of waterboarding, think of the megawatts we could generate!

The *real* reason the arm-wavers so mad has nothing to do with waterboarding, and everything to do with their impotent frustration over the fact that they can't get to Bush [who I don't care for, but that's another story].

As Goethe said, "Impotent hatred is the most horrible of all emotions; one should hate nobody whom one cannot destroy."

But fools routinely disregard words of wisdom. Their job description requires it.

Anyway, wake me when you guys get Bush. 'K? Thx.
11.5.2007 5:05pm
Anderson (mail):
But I like the concept of getting completely unreliable info provided by victims desperate to say anything to stop the torture without hurting anyone in the process.

Fixed it for ya, Smokes! Nice Goethe quote, btw.
11.5.2007 6:20pm
Smokey:
Anderson often has very intelligent and thoughtful posts, but he needs a clue here: any information - even deliberately false info - has value.

Cops get bad, false and unreliable information info most of the time. They still use it because it's valuable; another another piece that fits - or not - into the jigsaw puzzle. Another piece to compare with what other prisoners are claiming. I'd explain more, but why bother? It won't change anyone's mind here about how to win a war, will it?
11.5.2007 7:02pm
abw (www):
I'm disappointed to find so many comments that have no substance and contain basic fallacies and stale talking points.

If anyone is still reading this thread here's a challenge.

I understand the US military waterboards our own soldiers as part of training. Can anyone show a documented case of a US soldier in this training who died, was disabled, etc?
11.5.2007 7:03pm
r78:
abw

We do not waterboard soldiers as part of their training.

We simulate a bit of waterboarding in some SERE schools.

The difference being - of course - that people in the SERE training know that their "captors" do not really hate them, and don't intend to kill them.

If your question is an attempt to promote "we do it to our own guys so it can't be that bad" argument, the response is that we also order or soldiers to go on long hikes and go without adequate food and water for periods of time. We do not subject them to the Bataan Death March. There is a difference.
11.5.2007 7:39pm
jukeboxgrad (mail):
smokey: "I am still fully in favor of using waterboarding."

Then you should advocate for changing the law that makes it a felony. One of many things you haven't done is explain why you think it's OK to break the law.

"unread, by me"

We realize your posture is this, but we're surprised to hear you brag about it.

You can't refute what I said to you here, so you choose to ignore it. Impressive.
11.5.2007 8:32pm
Richard Aubrey (mail):
We are still hearing that torture gets only false information.
Wrong. To put it another way, any interrogation only gets false information. Also wrong.
The reason torture has worked in the past is that the interrogator asks questions TO WHICH HE KNOWS THE ANSWERS and punishes the vic for lying. The vic doesn't know which questions are ringers, which questions can be checked. In addition, the vic frequently doesn't know whether some little bit of real information which seems unimportant to him and with which he seeks to buy respite will fit a bigger picture.
Fact is, guys, the Gestapo among others made it work.
If you just start beating on a guy and asking questions, he'll say something. But that's not how it's done.

It is a cheap dodge from the moral quandary of the argument to insist, against the historical record, that torture does not work. Who could fail to be against something so horrible which doesn't work?
Problem is, what do you do if it does work?

Insist it doesn't. Easier that way.

To make it easier to swallow: Let's have a hypothetical. If it did work, what would you say? Remember, by answering this, you in no way agree to it in the non-hypothetical world. But just for grins....
11.5.2007 10:44pm
MarkField (mail):

It is a cheap dodge from the moral quandary of the argument to insist, against the historical record, that torture does not work.


I agree with this. The effectiveness of torture, either way, is not the reason why we ban it. There are, however, famous historical examples of ineffective torture which led to shocking injustice. See, e.g., the case of Jean Calas, immortalized by Voltaire. And then there's this from a Philippine victim of Japanese water torture: "When I was not able to endure his punishment which I received, I told a lie to Yuki ... . I could not really show anything to Yuki, because I was really lying just to stop the torture." Cite.
11.5.2007 11:05pm
jukeboxgrad (mail):
aubrey: "Who could fail to be against something so horrible which doesn't work?"

Lots of people. They're called sadists. The human race includes a few. Like, say, the kind of person who grows up incinerating frogs.

"what do you do if it does work?"

Here's an idea: do what you think Jesus would do.
11.5.2007 11:06pm
jukeboxgrad (mail):
mark: "I was really lying just to stop the torture"

Here's another example of that exact phenomenon. The following is from a senate report (pdf, p. 79-82):

In January 2004, Ibn Shaykh al-Libi, the source of reports on al Qa'ida's efforts to obtain CBW training in Iraq, recanted the information provided. Al-Libi said he had a "strong desire to tell his entire story and identify why and how he fabricated information since his capture." Al-Libi claimed that he fabricated "all information regarding al-Qa'ida's sending representatives to Iraq to try to obtain WMD assistance." Al-Libi claimed that to the best of his knowledge al-Qa'ida never sent any individuals into Iraq for any kind of support in chemical or biological weapons, as he had claimed previously [REDACTED].

([REDACTED]) Al-Libi told CIA debriefers in January 2004 that when he was detained by the United States in early 2002 one of his American debriefers had told him that he had to tell "where bin Laden was and about future operations or the U.S. would give al-Libi to [another foreign service.]" [REDACTED] Al-Libi claimed that the debriefers told al-Libi that he would have to sleep on the floor of his cell if he did not talk. Later, according to al-Libi, debriefers repeated the threat to send al-Libi to a foreign country [REDACTED], instructed him to remove his heavy socks and gloves, and placed him on the floor of his cell. Although al-Libi was only on the cold floor for fifteen minutes, he claimed he "decided he would fabricate any information the interrogators wanted in order to gain better treatment and avoid being handed over to [a foreign government.] [REDACTED].

(U) According to al-Libi, after his decision to fabricate information for debriefers, he "lied about being a member of al-Qa'ida. Although he considered himself close to, but not a member of, al-Qa'ida, he knew enough about the senior members, organization, and operations to claim to be a member." "Once al-Libi started fabricating information," he claimed, "his treatment improved and he experienced no further physical pressures from the Americans."

([REDACTED]) After his transfer to a foreign government [REDACTED], al-Libi claimed that during his initial debriefings "he lied to the [foreign government service] [REDACTED] about future operations to avoid torture." Al-Libi told the CIA that the foreign government service [REDACTED] explained to him that a "long list of methods could be used against him which were extreme" and that "he would confess because three thousand individuals had been in the chair before him and that each had confessed."

([REDACTED]) According to al-Libi, the foreign government service [REDACTED] "stated that the next topic was al-Qa'ida's connections with Iraq...This was a subject about which he knew nothing and had difficulty even coming up with a story." Al-Libi indicated that his interrogators did not like his responses and then "placed him in a small box approximately 50 cm x 50 cm." He claimed he was held in the box for approximately 17 hours. When he was let out of the box, al-Libi claims that he was given a last opportunity to "tell the truth." When al-Libi did not satisfy the interrogator, al-Libi claimed that "he was knocked over with an arm thrust across his chest and he fell on his back." Al-Libi told CIA debriefers that he then "was punched for 15 minutes."

(U) Al-Libi told debriefers that "after the beating," he was again asked about the connection with Iraq and this time he came up with a story that three al-Qa'ida members went to Iraq to learn about nuclear weapons. Al-Libi said that he used the names of real individuals associated with al-Qa'ida so that he could remember the details of his fabricated story and make it more believable to the foreign intelligence service. Al-Libi noted that "this pleased his [foreign] interrogators, who directed that al-Libi be taken back to a big room, vice [sic] the 50 square centimeter box and given food."

([REDACTED]) According to al-Libi, several days after the Iraq nuclear discussion, the foreign intelligence service debriefers [REDACTED] brought up the topic of anthrax and biological weapons. Al-Libi stated that he "knew nothing about a biological program and did not even understand the term biological." Al-Libi stated that "he could not come up with a story and was then beaten in a way that left no marks." According to al-Libi, he continued "to be unable to come up with a lie about biological weapons" because he did not understand the term "biological weapons."

(U) In February 2004, the CIA reissued the intelligence reporting from al-Libi to reflect the recantations.


This proves that torture is indeed "effective," in the following manner: it provides information that is politically useful, even though it's false.
11.5.2007 11:17pm
Richard Aubrey (mail):
Jukebox. I have been reproached, scornfully, for "one example". So consider yourself reproached for one example.
Nobody denies that torture gets false information from time to time, or that it can get false confessions any time the interrogator wants.
The point is, it has been effective in getting information which is considered useful. Tactically useful, generally. See the Germans and the Resistance in WW II.

WWJD? He was superior to the rest of us, and He was not tasked with saving our asses in this world. He no doubt mourns all injustice.

When torture works, it works to the advantage of the side getting the information. IOW, it has the capacity to save lives on that side.

In an earlier thread, one poster eventually admitted that there is a cost to eschewing torture. One which, as it happens, he's perfectly willing for others to pay. Still, he's halfway there.

I tell you what. Moral preening is better if you admit there's a cost and still oppose torture. Anybody can be against it by insisting it doesn't work. You have to be a high-browed, intellectual on conscience overload to admit there's a cost but you're still against it.
And isn't that what you're after?
11.6.2007 8:19am
Anderson (mail):
There are, however, famous historical examples of ineffective torture which led to shocking injustice.

Good lord, we just saw the case of the Egyptian fellow who lied and said he owned a radio he'd never seen before, just on the *oral threat* that his *family* (back in Egypt) might be tortured. (A threat that embarrassed the FBI so much, they apparently squealed and made the 2d Circuit redact their opinion recounting the coercion.)

What more do objective people need to hear? As opposed to those so in love with torture, they can't bear to let it go?
11.6.2007 9:20am
Richard Aubrey (mail):
Anderson. You and others answer a question which wasn't asked.
That means your answers are nonsense. The only possibility I can see is that you hope others are too dumb to see through the scam.

The point was not that torture never gets false answers. Among other things, all interrogation gets false answers.
The question is whether it has ever gotten truthful, useful answers.
The answer is yes.

So that, in the real world instead of the question-dodging world of some of the folks here, means you need to make a serious decision.

My contribution to the argument ought to be seen as a benefit to you.
Anybody can be against that which is both horrible and ineffective.
You have to be somebody to say, with almost-sincere concern, that you have thought it over in the depths of your incredibly wonderful mind and decided that, despite the cost, we should still eschew torture. This makes it look as if you've done some serious thinking. Of course, you haven't, but it looks like it. And it has the happy effect of being connected to the real world. There's no argument about opinion--"I understand the cost but think we need to pay it."--whereas there is argument [not really] about the facts.

Hell, I'm doing you a favor.
11.6.2007 10:30am
J. F. Thomas (mail):
In an earlier thread, one poster eventually admitted that there is a cost to eschewing torture. One which, as it happens, he's perfectly willing for others to pay. Still, he's halfway there.

And as I pointed out in that earlier thread, you are unwilling to admit that there is also a cost to torture. Aside from my "moral preening", I, and many others--including the U.S. military--believe that whatever tactical advantage may be gained from torture, the strategic losses far outweigh the short term gains. You simply refuse to acknowledge this.

So you might want to get out of the moral gutter you are in and examine the long term damage your support of torture is doing.
11.6.2007 10:59am
PLR:
Anderson. You and others answer a question which wasn't asked. That means your answers are nonsense. The only possibility I can see is that you hope others are too dumb to see through the scam.

That's amusing in a dark sort of way, coming from a guy who said this:

We are still hearing that torture gets only false information. Wrong. To put it another way, any interrogation only gets false information. Also wrong.
11.6.2007 11:04am
bud (mail):
[blockquote] r78:
Yes, 3,000 dead and tens of thousand of wounded soldier are a small price to pay for keeping a smaller number of NY Bond Traders safe. [/blockquote]

Dana Falkenberg, 3 - Zoe Falkenberg, 8 - Asia Cottom, 11 - Rodney Dickens, 11.

9/11 Victims List

You are a vile piece of work, r78.
11.6.2007 11:27am
Richard Aubrey (mail):
Actually, J.F., You don't know if I support the use of torture or not.
You, at least, admit there is a cost to not using it.
There is a cost to using it, as well.
The question is whether, all things considered, we ought to accept the cost of not using torture.
To insist it is totally ineffective ranges from a lie to being silly. To insist it is totally ineffective is to take the cheap way out of a difficult argument.

But I get no thanks for providing a way for all of you to look like really deep thinkers. All you have to do is to admit that not using torture has a cost but you have, in your near-infinite wisdom, decided to accept the cost. One benefit is, you won't, actually, be accepting the cost. It will be paid by the lower orders, but who's counting? And you still get to have the same position you now have.
Wins all around.
11.6.2007 11:32am
J. F. Thomas (mail):
When torture works, it works to the advantage of the side getting the information. IOW, it has the capacity to save lives on that side.

Wrong Richard, you make this assertion without any proof at all. I am willing that torture may yield tactical gains, in that it may yield actionable, time sensitive, intelligence faster than other less inhumane methods. But I contend that the strategic disadvantages of torture and inhumane treatment always outweigh the short term intelligence.

There can not be a starker example of this than Europe in World War II. There is no doubt that because the western allies, in the vast majority of cases, accepted the surrender of Germans, and once they surrendered, adhered scruplously to Geneva Conventions, that tens, if not hundreds, of thousands of lives were saved--both German and allied--on the Western Front in 1944 and 1945. Compare especially the last couple months of the war when Germans were surrendering to the British and Americans in droves while they fought to the death against the Russians. The Russians probably lost more men in the Battle for Berlin (the last month and a half of the war) than the British and Americans did from D-Day until the capitulation of Germany. As late as the end of April, 1945, German units were trying to break through Russian lines for the sole purpose of surrendering to the Americans.
11.6.2007 12:00pm
Richard Aubrey (mail):
J.F. WRT the WW II example. See the Japanese for a counter example. Not torturing them didn't do anybody much good in terms of motivating surrenders. So the result is specific to a given situation. The Germans took--for them--good care of western Allied POWs, unless they were Jewish. Not much help for our guys in Japanese hands. Situation specific.

Applicable to our current situation?

We are detaining--which seems to be a lot like arresting--terr suspects in Iraq and Afghanistan by the dozen before lunch. They don't seem to fear torture despite the dems' howls about how the US treats prisoners. So, unfortunately for the dems, we're apparently not doing it. Or, if we are, it's so few and so hidden that the surrendering terrs don't know about it. But, in any event, it doesn't seem to make much difference if it is happening.

Got to give you credit, though. You're thinking about this instead of posing.
11.6.2007 12:29pm
Smokey:
Oh, hey, J.F. Thomas came back. Was he out to lunch? Because he never answered my question from earlier in this thread:

J.F. Thomas:
"Smokey, don't drag the American military into degradation with you."
Response:
Um-m, JFT, I served in the military. In combat. What about you? Inquiring minds want to know.
Still waiting for JFT's answer.
11.6.2007 3:12pm
J. F. Thomas (mail):
No Smokey, I haven't served in the military. But you apparently believe that you should ignore the UCMJ and military regulations if it gives you a tactical advantage. You obviously don't believe in the oath you took (to defend the Constitution--not your buddies) or that you are only to follow "lawful" orders.
11.6.2007 3:45pm
J. F. Thomas (mail):
J.F. WRT the WW II example. See the Japanese for a counter example.

Actually Richard, a counter example would be one where mistreatment and torture resulted in a shortening of the war and increased likelyhood of surrender and cooperation (I'm sure you can find them but not in the kind of societies we will want to emulate). Seems like you are the one posing and not thinking.
11.6.2007 4:26pm
Smokey:
"No Smokey, I haven't served in the military."
Knew it, knew it, knew it.
11.6.2007 4:27pm
Baseballhead (mail):
"No Smokey, I haven't served in the military."
Knew it, knew it, knew it.
Dick Cheney thinks that standard is unfair.
11.6.2007 5:00pm
Elliot123 (mail):
"Since U.S. law defines torture as causing severe physical or mental suffering,..."

Interesting. So, does solitary confinement as used in almost all US prisons constitute sufficient mental suffering to be deemed torture?

"Aside from my "moral preening", I, and many others--including the U.S. military--believe that whatever tactical advantage may be gained from torture, the strategic losses far outweigh the short term gains."

Unless, of course, the short term gain is foiling a plot to nuke New York. Who here thinks that short term gain is not worth incurring the disapproval of the international community? Any New Yorkers?
11.6.2007 5:47pm
jukeboxgrad (mail):
richard: "I have been reproached, scornfully, for 'one example'."

You put that phrase ("one example") in quotes, as if someone in this thread has used that exact phrase against you. But no one in this thread has used that phrase other than you. So what on earth are you talking about?

"So consider yourself reproached for one example"

I consider myself nothing of the sort. I provided an example of something. Others provided other examples. What's wrong with that?

"Nobody denies that torture gets false information from time to time"

My example went beyond showing that "torture gets false information." My example creates the very strong impression that we have specifically used torture to get information that was politically useful, while apparently not caring that the information was false. We generally seemed awfully eager to attach credibility to things that didn't merit credibility (exhibit A: Curveball).

"it has been effective in getting information which is considered useful"

I will not argue that torture could not ever possibly produce useful information. But there seems to be an ample body of expertise which claims that it is generally much less effective than other methods.

If someone is on trial for torture, and I'm a juror, I'll be infinitely less sympathetic if I learn that they didn't try hard to first use those other methods.

Please note that the Japanese and Germans did lots of barbaric things, and we still didn't resort to torturing them, and we still managed to win. But now some thugs in a cave are an existential threat to us unless we toss our morality out the window? Sorry, but that just doesn't add up. And that 'logic' is an insult to all our predecessors who fought with honor, and won, and gave us a chance to inherit a country that had a decent reputation. We should do the same for our kids, and we're not.

"WWJD? He was superior to the rest of us"

Then we should do our best to be superior to the worst of us, instead of sinking to their level.

"When torture works, it works to the advantage of the side getting the information. IOW, it has the capacity to save lives on that side."

The Germans and Japanese tortured. We didn't. They lost. We won. Let us know how that fits your model.

"In an earlier thread, one poster eventually admitted that there is a cost to eschewing torture"

I think that poster was me. I think I said something like this: Morality doesn't mean much if it's something you hang onto only when it's easy and free to do so. Adults understand that morality has a price, and that the price is worth paying.

Living as a free society entails accepting risk that could be avoided if you handed your freedom to a king. Freedom isn't free, and neither is morality.

"You have to be a high-browed, intellectual on conscience overload to admit there's a cost but you're still against it."

No. You just have to be someone with morality, and someone who is adult enough to understand that morality is something you hang onto even when it costs something to do so.

"The question is whether it has ever gotten truthful, useful answers. The answer is yes."

That's the wrong question. A much better question is this: is it generally the best way to get "truthful, useful answers." As far as I can tell, experts seem to agree that the answer is no.

"All you have to do is to admit that not using torture has a cost but you have, in your near-infinite wisdom, decided to accept the cost. One benefit is, you won't, actually, be accepting the cost. It will be paid by the lower orders"

That's nonsense, and the opposite of what's real. If we agree, for the sake of argument, that eschewing torture escalates the risk of terrorism, then that elevated risk is borne by all Americans. And it is borne disproportionately by people who live in places like NYC, which, oddly enough, still overwhelmingly votes blue post-9/11.

The shoe belongs on the other foot. As others have pointed out, torture makes us weaker, and enhances the risk of terrorism. So the pro-torture crowd who lives far from any likely terror target are the ones who "won't, actually, be accepting the cost" of their immorality and poor judgment. (I Obviously realize there are some Bush voters in Manhattan. But red states are generally places that don't contain the most likely terror targets.)
11.6.2007 8:32pm
jukeboxgrad (mail):
elliot: "does solitary confinement as used in almost all US prisons constitute sufficient mental suffering to be deemed torture?"

No. You and/or the person you quoted is citing a truncated portion of the statute. You are failing to pay attention to the words that follow. The statute is here: US Code Title 18, Part I, Chapter 113C. Read it carefully and let us know if you can't grasp why your question is asinine.

You also seem to be recycling (in slightly modified form) the death-row nonsense that has already been addressed in this thread.

"Unless, of course, the short term gain is foiling a plot to nuke New York."

Some help regarding the silliness of that tired old ticking time-bomb scenario can be found here and here.
11.6.2007 8:33pm
Richard Aubrey (mail):
Juke.
I think it was J.F. who first admitted that eschewing torture had a cost but he was willing to accept it--that others accept it, I mean.
Most of the info we get from interrogation is tactical in nature, which is not to say it's the most important. So the guys facing the tactical situation are the ones who either have the info to use, or not.
I believe Operation Bojinka was busted by a combination of bad luck--a kitchen fire followed by an arrest--and rigorous interrogation. That would have been the big picture thing you talk about.
The counter to not torturing the Germans is the lack of results in the Pacific. J.F. made the observation that the Germans did not fight to the death as often in the west as against the Russians. Winning or losing was not J.F.'s point, but the reduction in desperate violence saved lives. True. But the lack of torture by us in the Pacific didn't result in the lack of desperate fighting to the death by the Japanese. Different situation.

The question of "existential" threat is a straw man. Most people's entire universe is threatened by their deaths. The question is not whether Islamofascism wins by terror directly, or by being allowed the slice-at-a-time imposition of sharia, formally or informally, that we see in Europe. The question is whether individuals are at risk. The US can survive a good many civilian deaths. But the dead don't survive being dead. There's a difference.

There are many ways of interrogation. Starting out with torture is a bad idea. But, at the end, when you don't have what you need and torture remains.... I'm glad Juke is willing to accept the price.

That's two.

Anybody else?
11.6.2007 8:58pm
jukeboxgrad (mail):
richard: "I believe Operation Bojinka was busted by a combination of bad luck--a kitchen fire followed by an arrest--and rigorous interrogation"

I believe you need to get your facts straight about Operation Bojinka. It is often cited as an example of torture saving lives. Trouble is, that's not what happened. What happened is this:

Advocates of the ticking bomb often cite the brutal torture of Abdul Hakim Murad in Manila in 1995, which they say stopped a plot to blow up a dozen trans-Pacific aircraft and kill 4,000 innocent passengers. Except, of course, for the simple fact that Murad's torture did nothing of the sort. As The Washington Post has reported, Manila police got all their important information from Murad in the first few minutes when they seized his laptop with the entire bomb plot. All the supposed details gained from the sixty-seven days of incessant beatings, spiced by techniques like cigarettes to the genitals, were, as one Filipino officer testified in a New York court, fabrications fed to Murad by Philippine police.


It's also worth paying attention to this:

According to journalists Marites Vitug and Glenda Gloria, both of whom wrote the book Under the Crescent Moon, agents hit Murad with a chair or a long piece of wood when he didn't talk. They forced water down his throat and pressed cigarette lights on his private parts. His ribs had completely been cracked, and agents were surprised that he survived.

He finally confessed after the 67 days. When an agent pretended to be a Mossad agent and told Murad that he was being taken to Israel, Murad's fear of Jews finally broke him, according to an investigator.


So even aside from the question of the value or quality of the information he provided, it's important to notice that he resisted all the physical techniques and only finally submitted as a result of a psychological technique.

And if you want to use him as an example, you have to admit that you are advocating the use of "cigarettes to the genitals," because all techniques short of that were useless (and even that technique was useless).

"The question of 'existential' threat is a straw man"

You would be correct if Bushists are not routinely claiming that the vast Islamofascist conspiracy is an existential threat. But that is precisely what Bushists are doing. Let me know if you really need me to cite examples.

"The US can survive a good many civilian deaths."

Precisely right. But Bushists are not inclined to acknowledge this. Bushists are regularly suggesting that the bad guys are going to do much more than just cause "many civilian deaths." Bushists claim our entire way of life is about to be destroyed, and that our women will soon be walking around in burqas, and we will all be living in a caliphate. In other words, they are suggesting that some fanatics in caves are going to do what the Axis couldn't do. Again, let me know if you need proof of how often these views are expressed.

By the way, you have essentially ducked many of the simple comments and questions I addressed to you here. The last three paragraphs, in particular.

You also fail to address this: even if you think torture is necessary and/or moral, it's a violation of federal law (along with a variety of treaties). It is legitimate to advocate changing the law. It's not legitimate to condone lawlessness.
11.6.2007 10:01pm
Richard Aubrey (mail):
Juke.

I am condoning nothing, or not condoning nothing. Something like that.
I am making the case that most arguments about torture are cheap posing, based on "it doesn't work".
BTW. The threat of being rendered to Mossad is a psychological technique due to the reputation--earned or not--that Mossad has wrt terrorists. So the psychology was the threat of even worse stuff. Not exactly fluffy bunny techniques.

I don't know about Bushists and the slice-at-a-time meme. Unless the folks talking about cabbies not picking up seeing-eye dogs are Bushists. The people talking about pre-emptive surrender in the UK are Bushists in disguise.

We can have a very hard time without being ruined as a nation. Example: A water treatment plant I know of was hardened. Nice landscaping. If you hadn't seen it before hand, you'd never know. Hardening the potential targets is a huge expense. And you know, how many children could be insured for that amount of money. Just think of it as being for the chilrun. The terrs are taking money away from the chilrun, the single moms, education, whatever you think is of surpassing and transcendent importance whenever the idea of defense spending comes up.
A Beslan didn't ruin Russia, and it won't ruin us. But it will cause a change in our lives, even if it happened in a different time zone.
The Axis lost because we did what they do better.
We face a completely different enemy doing completely different things. WW II was symmetrical. This is not.
How did the media turn itself inside out for fear of reprisals due to the Motoons?
PC has already taught us to self-censor when some accredited victim group doesn't want a particular subject broached. Add to that fear of assault. We do not have to have an existential end to have a very unhappy time.
That might change our way of life without, for example, changing the name of the nation. Or whatever else is required to be existential ruination.
Wait until your daughter, figuratively speaking, is schooled on the proper clothing to be out in public and the perps walk because a juror is in solidarity with his brothers. Problem is, you won't be able to say a single thing about it, because you're on record as scorning the idea of a threat, and besides, you'd be hammered for Islamophobia. Also being a Bushist. No existential threat to the US. Is that the same as no problem?

But that's beside the point. If you want to say that giving up torture as a technique could likely cost us--net--but you think we ought to anyway, go ahead. That's a step past most folks.
11.6.2007 10:30pm
jukeboxgrad (mail):
richard: "I am condoning nothing, or not condoning nothing. Something like that."

With all due respect, you're barely coherent, and you're not addressing what I've said. Try again when you're in a position to be more clear.
11.6.2007 11:09pm
Richard Aubrey (mail):
Juke.
You an engineer?

Let's put it another way. I was reacting to the baseless but entirely predictable accusation that I was condoning torture.
This is the juvenile-as-hell technique usually found in the lefties' songbook. If somebody points out an unpleasantness, an inconvenient fact, accuse him of condoning it. It's supposed to shut people up. It's a lie, of course, and the users know it.

I am not taking a position on the desireability of torture either way.
Unfortunately, in conversations about unpleasant or loaded topics, simply expressing a fact is a hook for the unscrupulous to use in accusing one of condoning, in this case, torture.
11.7.2007 8:01am
J. F. Thomas (mail):
Wait until your daughter, figuratively speaking, is schooled on the proper clothing to be out in public and the perps walk because a juror is in solidarity with his brothers.

In this country I fear this more from the Christian right and the likes of Dave Kopel (who absolutely glories in the wonders of Jury nullification) than from Islamists.

And I have stated repeatedly Richard, you dismiss the very real strategic consequences of our interrogation and other extra-legal tactics in the war on terror. We now have 35 CIA agents who cannot leave the country because they face jail terms in Italy. Our relations with Canada, Italy, and Germany specifically and many other countries generally have been harmed by our actions and mounting joint actions and getting their cooperation in investigating and capturing terrorists will be much more difficult in the future. Our ability to positively effect countries that have deplorable human rights records (like Pakistan) is almost nonexistent. How can we complain about Musharreff ignoring the rule of law when we have no respect for it ourselves?
11.7.2007 9:11am
jukeboxgrad (mail):
richard: "I was reacting to the baseless but entirely predictable accusation that I was condoning torture"

It's true that you haven't clearly said that you're pro-torture. Then again, you haven't clearly said much of anything at all.

"I am not taking a position on the desireability of torture either way."

When you show up here citing Instahack and suggest that supporting the rule of law is a form of "moral preening," you should be less surprised when this is interpreted as "taking a position."
11.7.2007 10:09am
Richard Aubrey (mail):
J.F. Pretending to fear the Christian right IS preening. You can say this crap, the Right Sort nod solemenly, and you know with absolute certainty that nothing at all will happen to you.
Slytherin loses one hundred points for being obvious.

I recall a black lawyer pushing juror nullification when a black guy is on trial for pushing drugs. Didn't see much liberal horror at the concept.

The preening is not because you all are so concerned about upholding the law. Other laws would be considerably less important to you.
Question. Would you oppose torture so vehemently if you weren't allowed to talk about opposing torture?

And since this is mostly about waterboarding, keep in mind that, while electrical shocks and myriad other outrages are considered torture, there is still contention about waterboarding. Made more contentious, as I have said, by the history of the anti-waterboarding cohort howling about far less awful things, such as--red ink. The credibility is zero.

And the "instahack" issue is bogus, as well. There's a problem with this kind of thing. If I say it w/o attribution, I look like I'm trying to pretend I made it up. If I thought of it before I find somebody else did, I still look like I'm trying to claim I made it up.
So it's not an appeal to authority, as you know, but an acknowledgment that others have thought of it as well.

J.F. I am aware of the costs of torture. That's why I have said, from time to time, "net". The question is, if it could be shown that, net, we incur a price for foregoing torture, would you be willing to forego torture?

The idea that other countries would be more inclined to be better folks if we were is as nutty a concept as can be imagined.

We've already had trouble with other countries and extradition because of the death penalty. This isn't new.
11.7.2007 10:28am
jukeboxgrad (mail):
richard: "there is still contention about waterboarding"

Waterboarding is a form of asphyxiation. Asphyxiation entails the threat of imminent death. US Code Title 18, Part I, Chapter 113C establishes torture as a felony, and defines it, among other things, as "the threat of imminent death." And this is aside from UCMJ and GC, which also outlaw torture, and define torture in a manner that clearly encompasses waterboarding.

Let us know where you see room for "contention" in this. Extra credit if you can answer without making reference to fraternity initiations, fake menstrual blood, Israeli flags, Celine Dion, "the four million hard core homeless," Clinton's inauguration, Operation Bojinka, sharia, water treatment plants, Russia, the "Motoons," Slytherin, and black lawyers.

"I am condoning nothing, or not condoning nothing. Something like that."

Indeed. You're highly skilled at being clearly unclear.
11.7.2007 11:04am
Richard Aubrey (mail):
juke.
Waterboarding is not a threat of imminent death. Clearly, if the guy is dead, he's not going to talk. Which the victim knows.
It's a way of faking the drowning reflexes into sending false messages.
It works, if it works, because it's so unpleasant, horrible. Nobody wants a repeat.
I once suggested we take waterboarding out of the "torture" category to save trouble and then decide whether it ought to be banned.
The Sovs used to have a drug which made the vic feel as if he were falling apart in any number of ways. It was so bad a doctor or other practitioner had to be on hand to reassure the vic that he would not, in fact, die. Apparently some folks had, out of despair or something. Nothing to be gained there.
That would be torture with the absolute or near absolute assurance that no death was in contemplation.

You don't get to set the parameters. If you are without credibility because of earlier nonsense, the earlier nonsense doesn't go away simply because you find it inconvenient. Liberals' credibility disappeared on this issue because of their absolute lack of interest when Clinton was president. Or, to be clearer, the credibility never appeared. Just faux outrage. And since that is irretrievably attached to the party affiliation of the president, it will disappear, like the hard-core homeless, if a dem is elected.
11.7.2007 11:47am
Smokey:
jbg to RA:
It's true that you haven't clearly said that you're pro-torture. Then again, you haven't clearly said much of anything at all.
Yet, jbg rants against things that are unclear to him. That's why I skip his insane postings.

As RA stated above:
If you are without credibility because of earlier nonsense, the earlier nonsense doesn't go away simply because you find it inconvenient.
True dat. He's convinced no one, but he keeps trying, and trying, and trying. Forty posts in this thread alone! He's done what crazy people often do - wired around his on/off switch.

What will he say when the Democrats confirm Mukasey??
11.7.2007 2:46pm
Richard Aubrey (mail):
Smokey.
When, say, ten people address one person, the one person is going to be posting considerably.

So, anyway, where were you when Clinton was doing it?
11.7.2007 3:17pm
jukeboxgrad (mail):
richard: "Waterboarding is not a threat of imminent death."

Please explain how asphyxiation does not entail a threat of imminent death. How long can you hold your breath?

Unless you're claiming that waterboarding is not a form of asphyxiation. Is that it?

"I once suggested we take waterboarding out of the 'torture' category"

What you "once suggested" is not relevant. What is relevant is that there is a long history of US courts treating waterboarding as torture.

smokey: "That's why I skip his insane postings."

You're a coward and a hack who skips what you cannot refute.

"What will he say when the Democrats confirm Mukasey??"

I guess you're trying to prove that you don't read my posts. I've already commented on that.
11.7.2007 4:27pm
Elliot123 (mail):
Jukebox: "No. You and/or the person you quoted is citing a truncated portion of the statute. You are failing to pay attention to the words that follow. The statute is here: US Code Title 18, Part I, Chapter 113C. Read it carefully and let us know if you can't grasp why your question is asinine."

If keeping someone in solitary confinement in a US prison is not mental suffering that would constitute torture, is keeping someone in solitary in Guantanamo torture?

Jukebox: "Some help regarding the silliness of that tired old ticking time-bomb scenario can be found here and here."

Unfortunately, that was no help. Felix just tells us on this thread that the situation never arises, or it is too infrequent to be considered in making policy. The ticking bomb scenario is tired and old, and perhps describes a rare situation. However, it is also one that is never directly addressd by the anti-torture people. Why not? It seems reasonable to establish the limits of a policy.

Would a prohibition against waterboarding apply to the nuke in New York? Waterboarding would scare a terrorist and make him think he was drowning, incur the displeasure of the international community, and antagonize anti-torture people in the US. Exploding a nuke in New York would kill five million Americans, possibly displease the international community, and antagonize most of the other 295 million Americans. If we are faced with a choice between scaring the terrorist and watching five million New Yorkers vaporize, which should we choose?

If a proposed policy has limits, and can't handle certain situations, shouldn't we acknowledge that?
11.7.2007 5:08pm
jukeboxgrad (mail):
elliot: "is keeping someone in solitary in Guantanamo torture?"

I don't know, probably not. Keep in mind that it might be a violation of UCMJ and/or GC without being torture. Anyway, I wonder why you ask.

"Felix just tells us on this thread that the situation never arises, or it is too infrequent to be considered in making policy."

No, that's not what he tells us. Maybe you'll understand it better if you read it again, with more elaboration, here.

"If we are faced with a choice between scaring the terrorist and watching five million New Yorkers vaporize, which should we choose?"

Please show evidence that torture has ever saved a single life.

"If a proposed policy has limits, and can't handle certain situations, shouldn't we acknowledge that?"

I think you should acknowledge that you're not reading very carefully, because the "proposed policy" even deals with your one-in-a-million made-for-tv fantasy scenario.
11.7.2007 9:00pm
jukeboxgrad (mail):
elliot: "If we are faced with a choice between scaring the terrorist and watching five million New Yorkers vaporize, which should we choose?"

Since you love hypotheticals, here are a few for you.

What if the waterboarding doesn't work? What will you try next? Raping him? Raping his wife? His kids? Killing his family before his eyes?

Would you do those things, or would you rather watch "five million New Yorkers vaporize?"

And what if those things don't work? What if you have to do the same to his whole family? His whole village?

Once you step onto the road of evil, where do you get off?
11.7.2007 10:38pm