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More on Waterboarding and the Office of Legal Counsel:
I appreciated Jonathan Adler's link on Saturday to the remarkable ABC News story about Dan Levin, then the acting head of DOJ's Office of Legal Counsel, who underwent waterboarding and concluded, as Jonathan noted, that "waterboarding could be illegal torture unless performed in a highly limited way and with close supervision . . . [that] the Bush Administration had failed to offer[.]"

  I just wanted to draw extra attention to the rest of the ABC News story, as it has other parts that struck me as the real news here:
  In December 2004, Levin released the new memo. He said, "Torture is abhorrent" but he went on to say in a footnote that the memo was not declaring the administration's previous opinions illegal. The White House, with Alberto Gonzales as the White House counsel, insisted that this footnote be included in the memo.
  But Levin never finished a second memo imposing tighter controls on the specific interrogation techniques. Sources said he was forced out of the Justice Department when Gonzales became attorney general.
  It seems that the real story is that "the White House" actually "insisted" on essentially drafting part of an OLC opinion, and that the person who was drafting a second memo limiting the practice was fired before the follow-up memo could be released. That story deserves wider attention; I hope we'll hear more about this.
George Weiss (mail):
i think we will.

good catch
11.5.2007 10:04pm
Ex-Fed (mail) (www):
I actually worked with Dan Levin years ago as a fed, and admired his integrity then. This certainly reinforces my impression. I'm sorry for the abuse that's going to rain down on him now.
11.5.2007 10:11pm
Old33 (mail):
How anyone can deny, at this point, that the United States has engaged in torture, in violation of US law and treaties to which we are a party, is beyond me. The first two years after 9/11 was largely a free-for-all, aided by lawyers at DOJ and the White House.

Everything since then has been one long episode of CYA.
11.5.2007 10:12pm
Ex-Fed (mail) (www):
By the way, one interesting thing I noticed about this. ABC reports sources say Dan Levin was forced out of DoJ, implying it was because he was soft on interrogation.

Yet during the U.S. Attorney firing scandal, the LA Times reported that documents released by DoJ showed that in early 2006 Dan was talked about by Gonzalez' staff as a good choice for the NDCA U.S. Attorney job. Here is a crappy reprint of the LA Times article; trying to find a better source for it.

Unless I am missing something, that doesn't make sense. So either (1) The L.A. Times was wrong on this point (unlikely, since it was apparently based on memos released by DoJ), (2) ABC's "sources" are wrong (possible, though it's not like it's an unlikely scenario), or (3) Gonzales' team couldn't keep track of their political hackery. They needed a better scorecard.

I suspect 2 or 3.

At any rate, Dan would have made an extremely good U.S. Attorney for NDCA.
11.5.2007 10:36pm
MarkField (mail):
Marty Lederman has a post about this at Balkinization. I can't provide a link, but it's entitled "How Low Can They Go?" and was posted at 9:32 am on Nov. 4.
11.5.2007 10:43pm
CrazyTrain (mail):
It seems that the real story is that "the White House" actually "insisted" on essentially drafting part of an OLC opinion, and that the person who was drafting a second memo limiting the practice was fired before the follow-up memo could be released.

One would think that a pattern is emerging here. . . .

Re Ex-Fed's comments, it is indeed predictable and sorry that the full force of the far-right-wing/24perecenter media will come down on this guy if he speaks out in any way that could be deemed harmful to der leader. I predict Michelle Malkin or one of her wannabes showing up at his house, interviewing his neighbors, etc., in the near future.
11.5.2007 10:45pm
Oren (mail):

Yet during the U.S. Attorney firing scandal, the LA Times reported that documents released by DoJ showed that in early 2006 Dan was talked about by Gonzalez' staff as a good choice for the NDCA U.S. Attorney job.


Stick a man of integrity where he can do much less damage?
11.5.2007 10:47pm
M. Lederman (mail):
You got that exactly right, Orin. (I think Jan's story has not been widely picked up not only because it ran on Friday night, and not only because we've now become inured to torture, and not only because the hospital story set a new bar for outrageousness, but also because ABC in effect buried the lede.) As I wrote yesterday:

It's hard to resist the simple conclusion that Gonzales and others were engaged, not only in an effort to completely distort the proper functioning of OLC (see generally Jack Goldsmith's book), but also in a conspiracy to violate the Torture Act. When responsible, thoughtful lawyers -- loyal conservative, Republican lawyers, mind you --- told them that what they had approved was unlawful, they insisted that the lawyers change their advice, and then got rid of the lawyers and hired another willing to provide alternative advice that no one could have sincerely believed (and then rewarded the lawyer who was willing to sign his name to that advice).

11.5.2007 10:56pm
Ex-Fed (mail) (www):
Oren, that explanation doesn't seem credible to me. First, if the NDCA USA slot were that unimportant, they wouldn't have been inspired to fire the non-compliant guy there in the first place. Second, unless I'm misunderstanding the timeline, Dan was already out (forced out?) of DoJ by then. This cached Wilmer Hale page shows him back in private practice in 2005.
11.5.2007 11:02pm
Kazinski:

The first two years after 9/11 was largely a free-for-all, aided by lawyers at DOJ and the White House.

Your damn right it was a free for all. We had the 9/11 attacks, then we had Richard Reid come a gnats eyelash from taking out an airliner a week later, then we had a series of still unexplained anthrax attacks that were killing people months later. Not to mention Dan Pearl's beheading. The gloves were off until they knew exactly what the extent of the Al Qaeda's organization and priorities were.

Some of you may long for a president with the dis-passion of a Dukakis, that can calmly answer a hypothetical about his wife getting raped and murdered. I want a president that is going to use the word "medieval" in his answer, in between the spittle.

Nevertheless I do feel myself somewhat let down by this president. Waterboarding was only used three times? What the hell have they been doing all these years in Gitmo? My mother grew up on a ranch in Arizona during the depression and was force fed caster oil as a punishment, that's at least as bad as waterboarding and she never broke.
11.5.2007 11:06pm
Attorney/FedClerk:
I applaud Dan Levin. It's about time someone in the administration put their money where their mouth is on torture and waterboarding. Unfortunately, the administration let go someone who appears to have integrity, intellectual honesty, and courage. I have recently seen videos of journalists being waterboarded, and it is awful to watch, and awful to imagine.
11.5.2007 11:10pm
Andrew J. Lazarus (mail):
Whether it's spelled Kazinski or Kaczynski, that's one sick family.
11.5.2007 11:33pm
Jacob (mail):
My mother grew up on a ranch in Arizona during the depression and was force fed caster oil as a punishment, that's at least as bad as waterboarding and she never broke.
Justice O'Connor?
11.5.2007 11:33pm
CrazyTrain (mail):
My mother grew up on a ranch in Arizona during the depression and was force fed caster oil as a punishment, that's at least as bad as waterboarding and she never broke.

A lot of little girls growing up were also raped by family members. So, shall we assume that Kazinski believes that rape is appropriate for prisoners? After all, some American children had to endure it.
11.5.2007 11:39pm
Ex-Fed (mail) (www):
One suspects that depression is intentionally uncapitalized in that post.
11.5.2007 11:39pm
David Hecht (mail):
"It seems that the real story is that "the White House" actually "insisted" on essentially drafting part of an OLC opinion, and that the person who was drafting a second memo limiting the practice was fired before the follow-up memo could be released."

Sooo...it seems that the real story is that the White House--the boss of the guy doing the memo-writing--insisted that the memo reflect his, the boss's, views? And that the memo-writer was subsequently fired for (presumably) trying to slip another one past the boss?

I'm sorry--if there's a story here, it's not obvious to me. When *I* worked for the Federal government--during three administrations from Reagan to Clinton--the deal was, you work in the executive branch, you support the President's policies, end of story. Anyone who had a problem with that was perfectly welcome to take it up with another employer.

Who, exactly, do you think the Federal bureaucracy works for, anyhow?!?
11.5.2007 11:47pm
OrinKerr:
David Hecht,

Imagine a client comes to you seeking a legal opinion about something, and you agree to provide legal advice about it. Do you always tell the client that he can do whatever he wants because, after all, he's the boss and you're just working for him? Or do you see your job as telling the client what the law is and then letting the client do what he's going to do?
11.5.2007 11:59pm
Andrew J. Lazarus (mail):
Well, Mr Hecht, if you work for the OLC, your job is to provide accurate legal advice. Indeed, your findings may be binding. If we really lived under democratic-decider centralism, as the Bush-remnant prefer, no such office would be needed at all.

The story here is depressingly simple. The President, Vice President, former Attorney General, and any number of lesser officials (Addington, Yoo) are war criminals. Because we are a big country, they will miss the appointment with The Hague that they deserve.

Some people are still trying to wiggle out of the fact that waterboarding was torture when done to us, and still is. Some, like Herr Kazinski upthread, are at least frank in their perversity.
11.6.2007 12:02am
Kazinski:
No Crazy Train I don't "[believe] that rape is appropriate for prisoners?" That is one reason that I am against having women in combat, even though I'm not naive enough to think women are the only prisoners to get raped.

But I guess the point I was trying to make though is even a generation or two ago, people wouldn't have blinked twice about waterboarding. Coercive interrogation techniques were common in every precinct, and we get our knickers in a knot over THREE instances of waterboarding, none of them since 2003. What a bunch of panty waists we've you've become.
11.6.2007 12:03am
OrinKerr:
Kazinski,

You seriously frighten me. You speak about waterboarding as if it's, well, the manly thing to do; you analogize objecting to waterboarding as being like a man not defending his woman (Dukakis) and as being "a bunch of panty waists." What's with the weird gender themes?
11.6.2007 12:11am
Dave B (mail):
The question remains, decision or not and Levin or not: If our government can't properly act to even consider being a Check and Balance on this type of claimed authority, we're doomed to slippery slope arguments, shifting lines in the sand, and wordplay where there would appear to be no wiggle room.

If the basic thrust is as follows, then we have serious problems:

A) We, the Executive branch, claim Executive Privilege and don't have to tell either the Congress or Courts what we do.

B) A law congress passes that says the Executive cannot do something has to be enforced by the executive only as long as we, the Executive, believe that what you passed is Constitutional (e.g. "not interfering with Article II 'powers'").

The problems with both A &B is they are essentially unenumerated and they short circuit the courts ability to determine whether there is a controversy and continuously enjoin the courts from making the distinctions that the Executive has no place in claiming a final say.

I doubt what I'm saying is even remotely correct, but if it is even a glimmer of the truth, it is scary to me.
11.6.2007 12:21am
Dave B (mail):
Please don't mind the spelling/grammatical errors if you can. help it.
11.6.2007 12:23am
whit:
"I have recently seen videos of journalists being waterboarded, and it is awful to watch, and awful to imagine."

journalists? if you are trying to garner compassion/sympathy for a waterboarding victim, try not to reference journalists.

use a sympathetic figure, like a nun batterer or something...
11.6.2007 12:58am
Kazinski:
Orin:

Oh the humanity.


Pantywaist
sissy: a timid man or boy considered childish or unassertive


I didn't make the word up, its in the dictionary, it just best expresses the idea I was trying to convey. I certainly wasn't calling anyone here a pantywaist, but was expressing my dismay at the at the level of squeamishness being exhibited by large chunks of the populace. Large chunks, but by no means a majority. Put the three pieces of crap that were waterboarded on a reality TV show, and the 1-800-DUNKTHEM number would win hands down. Not that I'm suggesting that, but believe me waterboarding will be a topic in the democratic primary, it will not be a general election topic because it is a loser.

As Chuck Schumer said:
It is easy to sit back in the armchair and say that torture can never be used, but when you are in the foxhole it is a very different deal. And I respect, I think we all respect the fact that the President is in the foxhole every day.
11.6.2007 1:07am
EH (mail):
Two things: it's not "squeamishness" to note that your government might be doing things you don't want them to do, even when they're illegal. This is a mark of a democratic society.

Secondly, Chuck Schumer was never in the military.
11.6.2007 3:39am
Perseus (mail):
You speak about waterboarding as if it's, well, the manly thing to do; you analogize objecting to waterboarding as being like a man not defending his woman (Dukakis) and as being "a bunch of panty waists." What's with the weird gender themes?

Kazinski's comment reminded me of Machiavelli, whose writings are rife with such "weird gender themes." And Machiavelli (who was tortured on the rack) would probably agree with Kazinski that our "effeminacy" inhibits us from inflicting the cruelties necessary to secure us against a medievally brutal and cruel enemy.
11.6.2007 4:03am
jukeboxgrad (mail):
kaz: "Waterboarding was only used three times?"

Not exactly. Bush's anonymous leakers have claimed it's been used 'only' on three persons. Not quite the same thing. Aside from that, take heart. Chances are the number three is a self-serving lie, like so many other Bush lies.

"we get our knickers in a knot over THREE instances of waterboarding, none of them since 2003"

Let us know why anyone (other than a good German like you) would consider these anonymous assurances from Bush to be credible.

"Your damn right it was a free for all. We had the 9/11 attacks … Richard Reid… anthrax attacks … Dan Pearl"

You're basically claiming that Bush's felonies were committed in a context of extenuating circumstances. If so, then it would be proper for the court to take that into account when he is tried for war crimes. What is not proper is for his crimes to go unprosecuted. That could only happen if we believe the president is above the law. But a president above the law is a king, not a president. We cured that affliction 231 years ago, but we are now having a relapse.

Either we live by the rule of law, or we don't. You are choosing the latter. Why do you hate democracy?

"I don't [believe] that rape is appropriate for prisoners"

How enlightened of you. But what about the famous ticking time bomb? Then rape would be OK, right? Along with crushing juvenile testicles (a la Yoo). Right?

"My mother … was force fed caster oil as a punishment, that's at least as bad as waterboarding"

If that was true, then all the folks who have used waterboarding (USA, Pol Pot, Japanese et al) would also have used castor oil. Hopefully you can show us an example of such a thing.

By the way, it's well-known that asphyxiation leads to death, rather quickly. I've never seen castor oil indicated as a cause of death. That would be another helpful example.

Anyway, we already know you're inclined toward sadism. We didn't need the personal details which help explain how you got that way. (Others have made the same point. I only wish I could have been as quick and insightful as Ex-Fed.)

"a generation or two ago, people wouldn't have blinked twice about waterboarding"

MacArthur did a lot more than blink at the Japanese officers who waterboarded US aviators. He imprisoned them. Are you really completely unaware of Wallach's historical review?

"Oh the humanity."

All of those volunteers are in a position to be 100% sure that the procedure will stop the moment they wish it to. They are in control (and doing something not very different than choosing to hold their breath for a certain period of time). Our captives are not. This distinction is so simple and crucial that even you should be able to grasp it.

"As Chuck Schumer said"

Schumer, at least in this instance, is Republican Lite. Like a lot of other Dems. Maybe someday this country will enjoy the benefits of a two-party system.
11.6.2007 6:55am
jukeboxgrad (mail):
orin: "What's with the weird gender themes?"

It doesn't take a Freud-level genius to understand that problems with sadism, dominance and violence are often linked to issues of sexual inadequacy. It's not an accident that one of the most militaristic, gun-loving, violent countries in the world is also one of the most sex-obsessed.
11.6.2007 6:56am
Steve:
I'm not sure what the point was of orchestrating all these OLC opinions. Under the unitary executive doctrine, it's just the President providing legal advice to himself anyway.
11.6.2007 7:33am
Swede:
Congress could make waterboarding go away.

They could also make this war go away.

And yet, they don't.

Hmmmm.
11.6.2007 7:37am
Gaius Marius:
If the United States adopted a "take no prisoners" policy, it wouldn't have to deal with the issue of torture.
11.6.2007 8:49am
Apodaca:
Quoth Kazinski:
Put the three pieces of crap that were waterboarded on a reality TV show, and the 1-800-DUNKTHEM number would win hands down.
You mean the way the Roman Empire pacified and distracted the populace with public spectacle?

Bread and circuitry.
11.6.2007 9:03am
eforhan (mail):
Wow. Bush Derangement Syndrome is out in full force.
11.6.2007 9:04am
Anderson (mail):
What's with the weird gender themes?

A question I have asked myself often.

The emotional commitment to torture seems bound up with hypercompensation for our fear and "impotence" in the face of surprise terror attacks.

No matter how many professional interrogators say that torture's an inferior method of obtaining intel ... no matter how closely our practices mirror those of the most loathsome torturers ... there's always someone to splutter that torture works, and even one American life saved is worth torturing any number of people, and WTF with these liberal sissies anyway?

--I'm very happy to see Prof. Kerr's post picking up on what Prof. Lederman suggests is " a conspiracy to violate the Torture Act."

I also hope that Prof. Kerr will read Judge Wallach's op-ed on waterboarding, and his online article thereon, if he hasn't already.
11.6.2007 9:14am
Porkchop:
JBG wrote:


It doesn't take a Freud-level genius to understand that problems with sadism, dominance and violence are often linked to issues of sexual inadequacy. It's not an accident that one of the most militaristic, gun-loving, violent countries in the world is also one of the most sex-obsessed.


juke -- let's do one issue at at time. I'm a veteran who likes sex and guns and still sort of regrets not making a career of the military, and, yet, I still know waterboarding is torture. If you are going to start attributing enthusiasm for firearms with sexual inadequacy on some Freudian level, you have fallen into the ad hominem trap. (Do I have to get my wife in here for a reference?) You are doing a great job as it is; don't dive for the low ones.
11.6.2007 9:18am
Anderson (mail):
Ach, I took my eye off the ball, but Scott Horton nails the pitch.

Who were Gonzales, Addington et al. *really* interested in protecting? America? Or their own hindquarters?

Note that Alberto Gonzales insisted on the inclusion of an infamous footnote which stated that, notwithstanding the different analysis, it was not overturning the advice given by the Yoo/Bybee torture memorandum. Although Levin grudgingly included this, that was not enough to save his job. Why did the Administration insist on this footnote? Because people had in fact been waterboarded, and this occurred with the authority of some of the senior-most officials of the Administration: Cheney, Addington, Gonzales and Rumsfeld, for instance. Without this, the door would be open for their criminal prosecution. Senior officials of the Administration were manipulating the issuance of opinions in the Justice Department to shield themselves from criminal prosecution.

As with the MCA, priority *number one* has consistently been: for the wrongdoers in the White House to protect themselves.
11.6.2007 9:28am
eforhan (mail):
I guess it doesn't matter that Levin wouldn't comment when asked, and the reporter used unnamed sources in her article?
11.6.2007 9:45am
Anderson (mail):
I guess it doesn't matter that Levin wouldn't comment when asked, and the reporter used unnamed sources in her article?

Sure it matters. It would be nice if the sources were on the record, but as you know, people have genuine fears of retaliation in cases like this.

I quoted Scott Horton above, and re: the credibility of the story, here's what he said:

The story that unfolded was grotesque, almost impossible to believe. I have been a critic of the Bush Justice Department for some time, but this story even I was reluctant to believe. It was depraved. So I waited, expecting that the Justice Department would denounce ABC's report as some sort of hoax or falsehood. In the intervening four days, however, the Justice Department has maintained a steady silence on the story which can be explained only one way: the story is true.

I know that if I were Gonzales, and someone falsely accused *me* of doing what sure looks like a transparent attempt to shield myself from criminal liability, I'd be denying it up &down the block.

And if Levin thinks the story is untrue, one would hope he'd simply say "without further comment, I must say that the story is not accurate." Given the implied accusation of Gonzales &others, it would be deeply irresponsible of him to decline all comment.

So there you have it. Are we certain of the facts? No. But when are grownups ever certain about most important issues?
11.6.2007 9:51am
eforhan (mail):
Grownups should take unnamed sources, especially in a political season, with a grain of salt.
11.6.2007 10:03am
jukeboxgrad (mail):
pork: "I'm a veteran who likes sex and guns"

Yes. But together? (Joking, sort of.)

"If you are going to start attributing enthusiasm for firearms with sexual inadequacy on some Freudian level"

Lots of things are normal when done in moderation, and not, when not. The fact remains that this country is obsessed with both sex and violence (and we don't notice this because we don't realize that other countries are not). This is not a statement about you unless you think it is.

Just look at Abu Ghraib for a perfect example of how some of America's finest treated sex and brutality as inseparable. Some of the more explicit material is not widely published, or even widely noticed or discussed. Let me know if you need a pointer.

"Do I have to get my wife in here for a reference?"

But then I'd have to get my wife involved too, and then suddenly we'd be playing bridge instead of talking politics.

By the way, thanks for the compliment. I sincerely appreciate it.

anderson: "Senior officials of the Administration were manipulating the issuance of opinions in the Justice Department to shield themselves from criminal prosecution."

All this fits right in with what Taguba said: "senior defense officials were involved in directing abusive interrogation policies." More from Taguba is here.

What's happening is pretty simple and clear. The only question is whether or not America is paying attention. If we're not, we'll get exactly what we deserve.
11.6.2007 10:04am
Felix Sulla:

If you are going to start attributing enthusiasm for firearms with sexual inadequacy on some Freudian level, you have fallen into the ad hominem trap.
I do not think he was necessarily engaging in an ad hominem attack; if I may speak for him I think he would probably agree that a certain level of enthusiasm for guns is not necessarily a bad thing at all. However, I have noticed that there are some people (in my experience, a minority among gun users) who take their enthusiasm for all-things-guns to the level of fetishism. Almost universally, I have found these people to also be sex-obsessed, again, in a fetishistic and heavily "macho" manner in which anything they disapprove of automatically becomes "queer" or else effeminate. They generally also subscribe to political/social ideologies which are, to put it bluntly, anti-intellectual and border on fascism. Again, I stress this is a very small part of the gun community, and one that I think gives the majority a reputation it simply does not deserve.

By the way, I do not own or shoot guns myself.
11.6.2007 10:05am
PatHMV (mail) (www):
Well, did Levin disagree with the footnote? If so, he should have refused to include it, and resigned if they tried to issue an opinion in his name which he did not agree with. If the footnote is correct, and Levin agrees that the practice is legal (but abhorrent), then it doesn't matter who told him to put it in.

Given what several commenters have said is the great integrity of Levin, I would suggest that he wrote the memo, and then Gonzales asked him: "You say this is abhorrent. Abhorrent is a moral, not a legal, term. What is your opinion about the legality of the practice?"

Either Levin agrees with the footnote, in which case his memo was mostly an attack on the merits and morality of a legal policy choice made by the President, or he disagrees with the footnote, in which case he should have resigned rather than allow it to be included in the memo.
11.6.2007 10:05am
Adam J:
PatHMV- Right, so Levin is the one who did wrong here... And I'm sure you too would quit your job over a footnote in a memo.
11.6.2007 10:12am
Adam J:
"If the footnote is correct, and Levin agrees that the practice is legal (but abhorrent)". The footnote doesn't say that he agrees that the practice is legal- not declaring something to be illegal does not mean you are declaring it to be legal.
11.6.2007 10:17am
Frog Leg (mail):
CNN just released a poll which found that 69 percent of Americans said that waterboarding is torture, and that 58 percent said it was wrong to use against terrorists.
11.6.2007 10:32am
Guest101:

And Machiavelli (who was tortured on the rack) would probably agree with Kazinski that our "effeminacy" inhibits us from inflicting the cruelties necessary to secure us against a medievally brutal and cruel enemy.

Our willingness to inflict cruelty in violation of the principles that we as a nation have supposedly held most dear and sink to the lowest denominator in the face of the modest threat posed by Islamic terrorism is not a sign of strength, but of weakness. Strength and confidence would see us marshalling our considerably greater resources to meet this threat while maintaining the principles that we like to believe distinguish us from our enemies. The readiness, even enthusiasm, on the part of an unfortunately substantial portion of the administration and the public to cast principled restraint aside in the face of provocation is an indication of weakness and, as noted above, impotence, not of strength or power.
11.6.2007 10:33am
JosephSlater (mail):
The gender theme is interesting. For a while, the Repub party has been trying to pitch itself as the "daddy" party (tough on crime, defense, etc.) while mocking the Dem party as, at best, the "mommy" party (programs for children, e.g.). In a wartime footing, with fears (from real to exaggerated) of terrorists, the daddy party would seem more appropriate, right? The guys that are willing to "do what it takes" and damn the niceties of "rules," which, apparently, are for girls and sissies. You see this also in the consistent use of feminizing languag to describe Dem candidates from Kerry to Edwards.

Sometimes this theme is so over the top it's noticeable, as with K's post. But it's been a consistent theme on the right for some time now.
11.6.2007 10:35am
Seamus (mail):
Whether it's spelled Kazinski or Kaczynski, that's one sick family.

How can you say such mean things about the president of Poland and his twin brother, the prime minister?
11.6.2007 10:44am
Anderson (mail):
Maybe we should just have Felix Sulla and Gaius Marius decide the issue by personal combat -- gladii at dawn?
11.6.2007 10:45am
SeaDrive:
Kazinski's enthusiasm for being unkind to terrorists misses the point. The Bush adminsistration, and especially the VP's office, has over-ridden the professional expertise of CIA and Defense with little more basis than school-yard bravado. And - the point of the thread - they have been ruthless in breaking the law and ruining careers to do it.
11.6.2007 11:05am
Felix Sulla:
Anderson: Only if Marius manages not to die before I manage to get around to him. In which event, I'll have to console myself with taking dictatorial powers, reforming the constitution, seizing the property of his supporters, and issuing a damnatio memoriae against him. ;-)
11.6.2007 11:10am
Ben P (mail):
I have to say, of the 47 other iterations of the "waterboarding" debate, this one has become the most amusing. We've managed to tie in Machiavelli and Freudian theories about S&M.
11.6.2007 11:11am
p buitrago (mail):
The Best way to have a definite answer to the "Is waterboarding torture or not?" is very simple. Just administer the procedure to Chenney and Bush, they can then tell us how they felt.
I am sure they would not recommend it to their families.
11.6.2007 11:22am
Anderson (mail):
If we're going to quote Machiavelli, how about this:

For I do not think a worse example can be set in a republic than to make a law and not to observe it.

Discourses I.45.

But if you're going to quote Machiavelli for our "effeminacy" in refraining from torture, don't forget what he considered the fount of this womanish weakness - the Christian religion. II.2.

If torture's supporters would clearly and publicly argue that Machiavelli was right, that would certainly clarify the debate.
11.6.2007 11:36am
JunkYardLawDog (mail):
Orin and Jukebox, I find your obsession with seeing sexual references in everything quite telling. Clearly freudian signs of a repressed sexual desire for dominance and violence towards women. Either that or just an irrational connection between sexual deviance and everything in life around you. Sort of the sexual equivalent of seeing a commie under every rock, only in this case its repressed worries about sexual impotence causing you to see sexual deviance involved in any idea with which you disagree.

Gets some help Juke.


Anderson:

The emotional commitment to hating Bush seems bound up with hypercompensation for the panty waists fear and "impotence" in the face of surprise terror attacks, and as a result the panty waist crowd engages in a bit of self-delusion and transference by transferring their concerns about the faceless and uncontrollable terrorist enemy to an enemy with a face and over whom they can at least think they may have some control, i.e. Bush. This transference mechanism (the same one that causes panty waists to attack guns instead of criminals) is the only thing that keeps them from peeing their pants every day.

Now if somebody could just tie sexual S&M concepts in with Nazism and add a touch of Hitler we will have the trifecta in this thread!!!!!! LOL

Says the "Dog"
11.6.2007 11:44am
SeaDrive:
I think it's a waste of time to argue whether waterboarding is torture or not. Reasonable people may have different opinions. Let's argue about whether it's allowed or not.

I think that would help move the debate to the big question of what status applies to terrorist prisoners. Pre-911, a prisoner was either a prisoner-of-war, or a criminal. (Waterboarding would be out of bounds for either). The Bush adminstration has tried to put them in a third category (enemy combatant) by extension of the President's war powers. I think they would have done better to get some authorizing legislation, but, but to be fair, it was probably not clear what shape such legislation should take. But, it's time enough.
11.6.2007 11:46am
Anderson (mail):
Now if somebody could just tie sexual S&M concepts in with Nazism

Sontag, "The Pornographic Imagination."

Dog's typically biting satire perfectly illustrates the phenomenon addressed by JBG.
11.6.2007 11:59am
J. F. Thomas (mail):
Pre-911, a prisoner was either a prisoner-of-war, or a criminal. (Waterboarding would be out of bounds for either).

If you are arguing that waterboarding is illegal for POWs and criminals then it is illegal for enemy combatants or whatever the president chooses to call them. None of the pertinent treaties (GC, war crimes act, International Convention on Torture, Military Law) make any distinction on the standard of treatment during interrogation.
11.6.2007 12:11pm
J. F. Thomas (mail):
Reasonable people may have different opinions.

It's just amazing how seven years can change the standard of what is "reasonable".
11.6.2007 12:13pm
Bob from Ohio (mail):
On one of the waterboarding posts is the last 2 days, someone said "we are winning" the argument because few defend the Administration anymore on this site.

Today we see why defenders have abandoned the field. One person defends waterboarding (somewhat strongly I admit) and he is called a Nazi, compared to the Unabomber and called sick, called weird with "gender issues", etc.

Its not winning, its bullying. Few are going to waste their time just so they can be called a "good German" etc.

Even the host fails to observe his own guidelines on comments.

The CNN poll said that 40% support waterboarding. With the margin of error, it might even be 45%. I guess those Americans are all Nazis too.

Ok, now let the insults begin again.
11.6.2007 12:15pm
Kazinski:
I sense a little frustration here, its natural since the arguement over waterboarding has been settled and a consensus has been reached: it is a distasteful technique that shouldn't be used routinely, but nobody is going to jail, or even have their careers ruined over it.

Mukasey is not going to call it illegal, and he is going to be confirmed as attorney general.

And Orin, I think your original point is loopy, Levin stated the "memo was not declaring the administration's previous opinions illegal". And Gonzales insisted that if that was Levin's opinion he should put explicitly in the memo, not hide it in a footnote. I fail to see anything at all wrong with that. He didn't tell Levin what his opinion should be, he didn't try to suppress his opinion, he just insisted that it be as clear as possible.
11.6.2007 12:21pm
Felix Sulla:
Bob: Be serious. Kazinski's original post defending waterboarding was comically bad, and I suspect intentionally so. Or at least I am willing to give him the benefit of the doubt on that one; otherwise, I fail to see why we should not call a spade a shovel.
11.6.2007 12:24pm
Mike& (mail):
The emotional commitment to hating Bush seems bound up with hypercompensation for the panty waists fear and "impotence" i

There is a war in Iraq. You can show us you're not a "panty waists" by serving over there, rather than commenting over here.
11.6.2007 12:37pm
Adam J:
Bob from Ohio- You're right, Kazinski is being bullied, he should be able to compare drinking castor oil to waterboarding and make bizarre and irrelevant gender references without being criticized for doing so.
11.6.2007 12:38pm
David Hecht (mail):
Professor Kerr, I don't believe your analogy is pertinent (and--as a former contracting officer, I say this as someone who has sought plenty of legal opinions within the Federal bureaucracy). For one thing, any lawyer's opinion is just that--an opinion. For another, the relationship between what I'll call the Executive Office of the President and the Justice Department is not that of a paying client to a legal office: it is more like that of a CEO to his company's in-house counsel.

So, reasoning from that perspective, if the CEO gets advice regarding a proposed action from his in-house counsel, and--after considering the various pros and cons of proceeding with his intended course of action, including the legal risks--decides to go ahead with it, I would imagine that he would prefer the final cut of the legal memo to emphasize the upside and downplay the risks. As you have presented the story, that is what was done here, following which, the fella who gave the original advice decided to go ahead and--in effect--put out a memo on his own authority contradicting the CEO.

Well, I don't know how things work in your work environment, but I can assure you that if a particular course of action were decided upon with which I disagreed, I would be given the following options: (1) swallow my concerns and get on board, (2) keep my concerns to myself and step aside (possibly having my boss sign off rather than myself), or (3) quit. Overruling the organization decision wasn't an option, and--had I tried it--I think it's safe to assume I'd have been fired on the spot.
11.6.2007 12:44pm
David Hecht (mail):
Professor Kerr, one more point, as I see I've actually failed to address your question directly (my bad).

The short answer is, "deciding" to provide advice is not an option in these situations: it's your job. And--as I was told many times in my capacity as a contracting officer, and--in turn--as I told many an OGC lawyer, "Your job is not to tell the program manager he can't do something because it's illegal. Your job is to help him find a way to achieve his larger goals without doing anything illegal."

If the fella who wrote these memos though he'd identified a problem, it was his absolute responsibility to come to the boss with the problem in one hand and a proposed solution in the other. If he didn't or wouldn't, he failed to perform the duties of his office.

And--I'll say this again--if he felt he couldn't, he should never have tried to unilaterally overrule the decision, once it had been made.
11.6.2007 12:52pm
Kazinski:
Sulla,

"comically bad". What is comically bad is the belief among the dilettante class (I hope that won't be construed as another gender reference), that the way to conduct a war is to first get a group of lawyers together that will decide what all the rules and procedures for conducting the war is, and then draw up the plans for issuing nerf guns to the troops.

Adam J:
Comparing castor oil to waterboarding is just as apt as comparing waterboarding to torture.

And I'm not being bullied, it's comments on blog. My lunch money is still firmly in my pockets.
11.6.2007 12:57pm
John Kunze:
Castor oil...is a colorless to very pale yellow liquid with mild or no odor or taste. - Wikipedia

It was used medicinally as a laxative. WWI biplane pilots embarrassed themselves when it was used as motor oil -- to deal with it they cut holes in the bottom of their planes.

With all due respect to Kazinski's mom, waterboarding is a whole different category.
11.6.2007 1:00pm
Vivictius (mail):
There really isnt any point in comments on these posts other then mutual mental masturbation by slamming your political opponents. It seems this is another subject alot like abortion, alot of people have such strong oppinions on the subject that discussion is not possible, disagree with them and you are suddenly the antichrist (or whatever the secular equivalent is).

Of course, maybe I just went into the wrong room, I was looking for 12A.
11.6.2007 1:03pm
Adam J:
Kazinski-

"Comparing castor oil to waterboarding is just as apt as comparing waterboarding to torture."

I find this statement very strange, it either means that you are agreeing that castor oil and waterboarding is an "apt" comparison and thus comparing waterboarding to torture is "apt"- thus refuting your earlier statements that waterboarding isn't at all like torture. Or it means that castor oil and waterboarding isn't an "apt" comparison at all, and thus waterboarding and torture isn't an "apt" comparison- thus agreeing with me comparing waterboarding to castor oil is indeed a ridiculous comparison.
11.6.2007 1:09pm
Patrick Joy:
SeaDrive: The professional opinions of the CIA?? You must be kidding. The CIA has been wrong on every major foreign policy issue in the last 30 years. Iran? Contras? Eastern Europe? Strength of USSR? Iran/Iraq war? Advancement of Iraq nulear development in 1992? Bosnia? 9/11? and last but not least the faulty intelligence gathered and spread by the CIA regarding Iraq that gave justification for an invasion. Please name 1 thing the CIA professionals have been right on?

The bush lied and minipulated intelligence meme is the greatest conterespionage activities the CIA has ever engaged in. They have everthything wrong for a decade on Iraq and when the president uses that information the CIA starts leaking about how the president mislead the nation and lied about the intelligence.
11.6.2007 1:09pm
Adam J:
John Kunze- I wouldn't bring up Kazinski's mom- Bob from Ohio might think you are "bullying" Kazinski.
11.6.2007 1:10pm
Andrew J. Lazarus (mail):
I imagine far more than 40 percent of Germans supported turning suspected Judeobolshevik terrorists into soap. The fact that some percentage of Americans approve of torture does not make it legal, or for that matter moral.

How much better if Cheney and Yoo had just bought torture porn magazines instead of re-creating their favorite scenes with unwilling detainees.
11.6.2007 1:30pm
Kazinski:
Kunze,
You and Wikipedia know nothing of which you speak. Castor oil is the most vile substance ever created for intentional human consumption.


Adam J.
Torture is lopping off peoples fingers with bolt cutters. Any interrogation technique that doesn't prevent the subject from sitting down and enjoying a latte 15 minutes later after they compose themselves doesn't constitute torture in my opinion.
11.6.2007 1:30pm
SeaDrive:

"The professional opinions of the CIA?? You must be kidding. The CIA has been wrong on every major foreign policy issue in the last 30 years."

I admire your enthusiasm butI was talking about professional expertise (interrogation techniques at CIA, importance of the Geneva Conventions at Defense), not intelligence product.
11.6.2007 1:38pm
Mark Field (mail):

On one of the waterboarding posts is the last 2 days, someone said "we are winning" the argument because few defend the Administration anymore on this site.

Today we see why defenders have abandoned the field. One person defends waterboarding (somewhat strongly I admit) and he is called a Nazi, compared to the Unabomber and called sick, called weird with "gender issues", etc.


That was my post. Frankly, I think it's ironic that those who defend torture by describing its opponents as wimps and sissies -- people unwilling to make the "hard" decisions in this "existential" war we're supposedly fighting -- are now described as the victims of bullying. I'm sure Michelle Malkin feels that she was the victim of a 12 year old.

No, we're winning because the quality of argument on the other side has now been exposed as pathetically inadequate. Those who can't stand the heat are in no position to defend torture.
11.6.2007 1:39pm
Anderson (mail):
I admire your enthusiasm butI was talking about professional expertise (interrogation techniques at CIA

You would think that, wouldn't you? Turned out that CIA had no clue how to interrogate its post-9/11 prisoners. Cluelessness led to torture.

On September 17, 2001, President Bush signed a secret Presidential finding authorizing the C.I.A. to create paramilitary teams to hunt, capture, detain, or kill designated terrorists almost anywhere in the world. Yet the C.I.A. had virtually no trained interrogators. A former C.I.A. officer involved in fighting terrorism said that, at first, the agency was crippled by its lack of expertise.

"It began right away, in Afghanistan, on the fly," he recalled. "They invented the program of interrogation with people who had no understanding of Al Qaeda or the Arab world." The former officer said that the pressure from the White House, in particular from Vice-President Dick Cheney, was intense: "They were pushing us: 'Get information! Do not let us get hit again!' "

In the scramble, he said, he searched the C.I.A.'s archives, to see what interrogation techniques had worked in the past. He was particularly impressed with the Phoenix Program, from the Vietnam War. Critics, including military historians, have described it as a program of state-sanctioned torture and murder. A Pentagon-contract study found that, between 1970 and 1971, ninety-seven per cent of the Vietcong targeted by the Phoenix Program were of negligible importance. But, after September 11th, some C.I.A. officials viewed the program as a useful model.

A. B. Krongard, who was the executive director of the C.I.A. from 2001 to 2004, said that the agency turned to "everyone we could, including our friends in Arab cultures," for interrogation advice, among them those in Egypt, Jordan, and Saudi Arabia, all of which the State Department regularly criticizes for human-rights abuses.
(Paragraphing added.)

(Which shows the flaw in the "mutual mental masturbation" comment above. These threads enable people to pose questions and sometimes to get answers.)
11.6.2007 2:03pm
Kazinski:
Mark Field,

I'm not complaining about bullying, go ahead don't hold back I can take it. I do sense some frustration here, but it is natural when you feel strongly about a topic and you just can't get any traction. But I certainly don't take it personally.

Don't wory about Michelle either, I'm sure she is fine too.
11.6.2007 2:13pm
Ben P (mail):

(Which shows the flaw in the "mutual mental masturbation" comment above. These threads enable people to pose questions and sometimes to get answers.)


I'm not so sure about that.

I don't even know how many threads there have been about waterboarding in the past month or so, and I'm too lazy to go back and count, it seems like it's at least 8+.


Every single one of them has sparked the same debate, sometimes in different order.

Poster A: I am outraged that we're not willing to condemn torture.
Poster B: Waterboarding isn't torture, *Generic remark about how light of a punishment waterboarding is*
Poster C: We're not sure if it's torture or not, this should be looked at. Sometimes extreme tactics are needed and it might be reasonable in interrogations.
Poster A: Isn't it shocking how far reasonable has come in 7 years?
Poster D: I agree with C that waterboarding isn't torture, and even if it was, we should be doing it becuase they're terrorists.
11.6.2007 2:18pm
Felix Sulla:

"comically bad". What is comically bad is the belief among the dilettante class (I hope that won't be construed as another gender reference), that the way to conduct a war is to first get a group of lawyers together that will decide what all the rules and procedures for conducting the war is, and then draw up the plans for issuing nerf guns to the troops.
Hmm. The "dilettante class"? Is that like when people whose idea and closest experience of combat is having watched Patton during a keg party while on draft deferment in college take us all to war and then scream for years on end that the rest of us (including, apparently, the military) don't understand war -- or for that matter, the necessity of torture? Spare me the aspersions of amateurism unless you are willing to back your experience of torture up with something far more extensive than a distaste for castor oil.

Beyond this, it is actually one of the hallmarks of a civilized and law abiding society that, yes, we do have certain rules, procedures, and protections in place (often, drafted by lawyers!) in the event of a war, your characterization of same notwithstanding. That you find this humorous (and concommitantly that you again imply the essential "wimpiness" of it) speaks for you much better than your attempts at humor itself. One might go so far as to call it merely "badly comic."
11.6.2007 2:19pm
Adam J:
Kazinski- "Torture is lopping off peoples fingers with bolt cutters. Any interrogation technique that doesn't prevent the subject from sitting down and enjoying a latte 15 minutes later after they compose themselves doesn't constitute torture in my opinion."

So I guess can infer from this statement you think that waterboarding and torture isn't an "apt" comparison. And since you said "Comparing castor oil to waterboarding is just as apt as comparing waterboarding to torture" you must therefore think waterboarding and castor oil isn't an "apt" comparison either.
11.6.2007 2:33pm
Michael B (mail):
"Torture is lopping off peoples fingers with bolt cutters. Any interrogation technique that doesn't prevent the subject from sitting down and enjoying a latte 15 minutes later after they compose themselves doesn't constitute torture in my opinion."

One would think this would register, at least at some decisive or prominent level - and yet, it seems no such distinctions are necessary (or even desired).

Even the previously noted CNN poll doesn't ask a terribly serious or problematic question. For example, asking: "If you positively knew (or if you thought it likely, or even possible) that using a waterboarding technique to obtain information from a confirmed AQ operative would help to save coalition (Iraqi, civilian, etc.) lives, would you approve of using the technique?" Instead, CNN's poll asks little more than, essentially, "Do you believe yourself to be a moral person?" Or rather, it allows respondents to take that route, and avoid any real heat. Perhaps that's the type of "heat" Mark Field and others are willing to stand up to. In such a world, where consequences don't need to be considered (indeed, are elided altogether), it's wonderful to be such a moral "force" in the world.

It's certainly a worthy debate, if intellectual seriousness and a more thoroughgoing moral probity are brought to bear. If.
11.6.2007 2:50pm
Tom S (mail):
A propos Castor Oil:

While fighting to take over Italy, and after they had seized power, Fascist "enforcers" used large amounts of castor oil--forceably administered by mouth--to help convince those who disagreed with them that Fascism was the way to go. The "treatment" was effective.
11.6.2007 3:01pm
Patrick Joy:
SeaDrive:

professional expertise (interrogation techniques at CIA, importance of the Geneva Conventions at Defense
Unfortunately, it was the DOD personnel who complained. The CIA staff were happy to go along with using 'torture'.
),
11.6.2007 3:01pm
InABigCountry:
Michael B: Instead, CNN's poll asks little more than, essentially, "Do you believe yourself to be a moral person?"

Whereas your question asks, "Are you man enough to approve of torture?"

Please explain in what world ANYONE "positively knows" that torturing someone would result in saving lives. "24" doesn't count.
11.6.2007 3:04pm
Anderson (mail):
Every single one of them has sparked the same debate, sometimes in different order.

Well, that *is* 85% of the comments, but on those, the judges are looking mainly at style.
11.6.2007 3:08pm
Felix Sulla:

Please explain in what world ANYONE "positively knows" that torturing someone would result in saving lives. "24" doesn't count.
Amen. This just never happens in the real world, or is so astonishingly infrequent as to be ludicrous as the basis for all interrogation policy.

By the way, here's what a really conscientious person would do in the unlikely event they were to "know" torture will save lives: they go ahead and torture, and then turn themselves in to the authorities. Chances are, if the claim of special knowledge ends up as being actually justified (and not merely a lame post hoc excuse for having acted in a patently illegal manner), the prosecutors will either decline to indict/prosecute, or in the worst case scenario, no jury would actually convict.
11.6.2007 3:16pm
Tom S (mail):
If lopping off fingers is torture, then I guess driving bamboo slivers under fingernails is not. After all, there is no permanent disfigurement, and not even the sensation--or actuality--of drowning. Probably too girlish for Kazinsky...
11.6.2007 3:22pm
Perseus (mail):
For I do not think a worse example can be set in a republic than to make a law and not to observe it.

Discourses I.45.


The full sentence reads: "For I do not believe there is a thing that sets a more wicked example in a republic than to make a law and not observe it, and so much the more as it is not observed by him who made it."

But unlike Virginius and Savonarola who supported the laws in question (even if they ignored the laws for partisan political advantage), President Bush publicly opposed the McCain detainee amendment, and (based on his accompanying presidential signing statement) does not believe he is bound by it to the extent that it interferes with his article 2 powers (i.e., the law is null and void to the extent that it does so).

If torture's supporters would clearly and publicly argue that Machiavelli was right, that would certainly clarify the debate.

That forthright mode of proceeding wouldn't be very Machiavellian, now would it (since it is good for a prince to appear merciful, faithful, humane, honest, and religious even when necessity dictates that he behave otherwise)?
11.6.2007 3:44pm
Kazinski:
Tom S.

Bamboo under the fingernails fails the "Latte Test". It also fails the Geneva Convention test:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ...

Waterboarding does not fail the test, or at least it doesn't clearly fail the test.

Felix,
by the best information available waterboarding has been used on only three subjects. And I think at least in KSM's case it demonstrably did save lives. When he rolled over we were able to capture some very dangerous at large terrorists that were determined to perpetrate further attacks. You amd IABC are formulating a impractical standard: " ANYONE 'positively knows' that torturing someone would result in saving lives." I think a preponderance of the evidence is the proper standard.
11.6.2007 3:53pm
Anderson (mail):
Perseus, you are quite smart enough to know that the "so much the more so" clause does not limit the meaning of what precedes it, but rather intensifies its application in the particular case that does not apply here.

As for the McCain amendment, Bush signed it into law.

As for the signing statement, that has approximately the same legal force as his diary. If he believed that the statute in question was unconstitutional, then he should not have signed it. Whether it impinges on his "article 2 powers" (or on those of Article 11) is for the courts to decide, not for the interested party (= himself).

In other words, Bush is the president of a republic, not a prince.
11.6.2007 3:58pm
Kazinski:
Anderson,
I think you are wrong as a matter of law. It is the executives responsibility to interpret any statute in a way that they believe to be constitutional. And the executives interpretation of any statute is controlling until the courts rule. You surely aren't suggesting that Congress has the power to interpret its own statutes in the absense of a court ruling are you?
11.6.2007 4:07pm
Michael B (mail):
"Whereas your question asks, 'Are you man enough to approve of torture?'" InABigCountry

Strawman. My question asks no such thing. I was more simply noting some examples of questions that would be considered morally problematic and more demanding of respondents to the poll. You are free to offer your own examples, but the idea is to offer something that probes more thoughtfully, more demandingly - concerning consequences and concerning other factors - than the CNN poll question does.

"Please explain in what world ANYONE "positively knows" that torturing someone would result in saving lives. "24" doesn't count."

Again, it's a poll question, a hypothetical designed to probe beyond the surface of things, not render absolute and irrevocable knowledge. I didn't pretend or imagine otherwise. But back at ya:

Please explain in what world ANYONE "positively knows" that waterboarding an AQ type would not result in saving lives, given the limited use it's been put to.

Or put differently and in general terms, why are your assumptions, about consequences and other factors, deemed to be more worthy than other and opposing assumptions?
11.6.2007 4:16pm
Anderson (mail):
And the executives interpretation of any statute is controlling until the courts rule

That's true de facto, but then, so is my interpretation of the shoplifting statute, at least until I'm apprehended.

But is that the issue? I thought Perseus wrote that Bush "does not believe he is bound by it to the extent that it interferes with his article 2 powers." That is not a question of *statutory* interpretation, at least not necessarily. That's a question of constitutional interpretation - what *are* those "article 2 powers"? Does command of the armed forces allow torture of prisoners? surveillance of American civilians at home?

Obviously, the President can act on his own interpretation of those powers, but the courts have the last word. Is that what you meant?
11.6.2007 4:28pm
InABigCountry:
Michael B: Strawman. My question asks no such thing.

Then please explain where you found "are you a moral person?" in these questions:


Asked whether they think waterboarding is a form of torture, more than two-thirds of respondents, or 69 percent, said yes; 29 percent said no.

Asked whether they think the U.S. government should be allowed to use the procedure to try to get information from suspected terrorists, 58 percent said no; 40 percent said yes.


They seem self-explanatory to me and are pretty much the two core issues the VC has been discussing for weeks. Perhaps it's your guilt talking.

Michael B: Please explain in what world ANYONE "positively knows" that waterboarding an AQ type would not result in saving lives, given the limited use it's been put to.

I don't get it. I'm sure most everybody would agree that torturing people would save some lives somewhere, but that is hardly the point--the damage to our international reputation and our institutions via the incredibly underhanded way Bush has legalized torture is incalculable. I'm also sure that if we executed everyone who does something illegal we'd have less crime, but that doesn't make such an action any less stupid or evil.

Michael B: Or put differently and in general terms, why are your assumptions, about consequences and other factors, deemed to be more worthy than other and opposing assumptions?

What are these "assumptions"? That fantasy isn't reality? That the real world doesn't work like a spy movie?
11.6.2007 4:47pm
Smokey:
There being no other nominations, I nominate myself nominator of the Money Quote:

Kazinski:
I sense a little frustration here, its natural since the argument over waterboarding has been settled and a consensus has been reached: it is a distasteful technique that shouldn't be used routinely, but nobody is going to jail, or even have their careers ruined over it.

Mukasey is not going to call it illegal, and he is going to be confirmed as attorney general.
Concise and to the point.

Carry on.
11.6.2007 4:57pm
Michael B (mail):
"Then please explain where you found "are you a moral person?" in these questions ..." InABigCountry

My point was to say that the question could have been rendered in a more pointed fashion - in a fashion that more explicitly and demandingly takes note of consequences. I am not hung up on the language I used, but that was the gist of my point. The CNN questions obviously and overtly address the subject of torture, a subject people are normally going to retract from and react against, and rightly so; but the question does not (overtly) address consequences, whether adverse and tragic consequences or positive consequences (e.g., preventing an attack as a result of obtaining information).

Iow, for a contrast, imagine a poll question where the idea of torture is implicit rather than explicit but the idea of avoiding some tragedy is rendered explicitly, rather than implicitly. E.g., "If you thought you might gain critical information, information that could avert death and mayhem among many civilians, by using a technique that some, perhaps many, consider questionable, while not permanently injurious, would you be willing to use such a technique?"

Perhaps it's your guilt talking."

Perhaps it's your assumptions and your preemptive and unthinking sense of moral superiority talking. But that would be to question your own assumptions, it would require moral and intellectual seriousness, in lieu of such ad hominem insinuations and simplistic assumptions.

"I don't get it. I'm sure most everybody would agree that torturing people would save some lives somewhere, but that is hardly the point--the damage to our international reputation and our institutions via the incredibly underhanded way Bush has legalized torture is incalculable. I'm also sure that if we executed everyone who does something illegal we'd have less crime, but that doesn't make such an action any less stupid or evil."

I agree, you don't get it. This is about waterboarding rarely, though occasionally, applied, not torture in some indiscriminate or carte blanche fashion. The very fact you're using such excitable, absurd analogies suggests you aren't so much as attempting to "get it." In reply, for example, I could say we can simply let any and all terrorist suspects go without so much as questioning them, we'd certainly ensure no one would be tortured that way, but that doesn't make such an action any less stupid or evil. (And it would in fact be evil - to forego opportunities where there is a real potential for gaining valuable information about plans to perpetrate murder and mayhem against civilian populations, against our military, etc.)

You are not interested in an exchange, you're interested in forwarding more contempt, dismissiveness, etc. preemptively, so you don't have to question your own assumptions, so you don't have to think through, more demandingly, the consequences of those assumptions from a multifaceted pov.

Your moral view, as reflected herein, is more than a reified and incurious egoism, but only barely so.
11.6.2007 6:03pm
Kazinski:
Thank you Smokey,
But anymore like that and they're going to accuse us of being sock puppets.
11.6.2007 6:15pm
Swede:
"There is a war in Iraq. You can show us you're not a "panty waists" by serving over there, rather than commenting over here."

Idiot. You can do both. I have.

Twice.
11.6.2007 7:24pm
jukeboxgrad (mail):
eforhan: "Grownups should take unnamed sources, especially in a political season, with a grain of salt."

I guess you must mean the sources who are the sole basis for the assertions, often repeated as gospel, that Bush did it to 'only' three people, and that he doesn't do it anymore. Likewise for many similar assertions (based, as far as I can tell, on no sources at all, or sources that are not credible and utterly uncorroborated), that we do it in a very careful and controlled way, and that we've never killed anyone doing it, and that we've only done it when we had very good reason to, and that it's produced helpful information and saved lives, etc.

Your skepticism is highly selective.

kaz: "in KSM's case it demonstrably did save lives"

Please show your proof. And keep in mind that self-serving, uncorroborated, undocumented statements by Bush et al are utterly worthless, about as credible as statements made by a person who is being tortured.

"What is comically bad is the belief … that the way to conduct a war is to first get a group of lawyers together that will decide what all the rules and procedures for conducting the war is"

This sort of goes to the heart of the matter. You obviously don't like it, but we actually do have "rules and procedures for conducting … war," in the form of both treaties and federal statutes. Here's what that's called: living by the rule of law. You lack the intellectual integrity to call for the law to be changed. You simply advocate ignoring it. And suggesting that anyone who respects the rule of law is a "dilletante" and a "pantywaist." Why do you hate democracy?

"Any interrogation technique that doesn't prevent the subject from sitting down and enjoying a latte 15 minutes later after they compose themselves doesn't constitute torture in my opinion."

It's generous of you to share your "opinion" with us. However, it has no legal relevance. What has legal relevance is US Code Title 18, Part I, Chapter 113C, which completely omits any reference to latte.

You and all your pro-torture pals have utterly failed (or even attempted, as far as I can tell) to explain why waterboarding is not torture under this statute. The statute says that "the threat of imminent death" is a form of torture. I've been waiting for any member of the pro-torture crowd to explain what's incorrect about the following equation: waterboarding=asphyxiation=threat of imminent death.

Either that, or admit that you reject the rule of law. It seems to be one or the other.

michael: "intellectual seriousness"

Since you've got so much of that, you should have no trouble at all answering the question I just posed.

"Please explain in what world ANYONE 'positively knows' that waterboarding an AQ type would not result in saving lives"

I'm sure you realize that proving a negative is generally impossible, so you're right no one "positively knows" that. However, anyone who understands the meaning of simple English words like asphyxiation, imminent, and death, "positively knows" that "waterboarding an AQ type" is a felony violation of US Code Title 18, Part I, Chapter 113C.

felix: "here's what a really conscientious person would do in the unlikely event they were to 'know' torture will save lives: they go ahead and torture, and then turn themselves in to the authorities"

Bingo. This is the proper answer to the tired old 'ticking time-bomb' hypothetical.

If Bush had an ounce of courage and integrity, he would say something like this: "yes, we tortured even though we knew it was illegal. We felt we had to. Now we are ready to pay the price, and we trust that the court will consider the extenuating circumstances after we explain them in detail."

And that's the outcome that Congress would demand if they had courage and integrity.

"if I may speak for him"

You spoke for me very well, and I appreciate it. You said it better than I could have said it myself.
11.6.2007 7:33pm
Gaius Marius:
This debate concerning waterboarding and torture will never be resolved to satisfaction. It's time to simply "cry havoc, and let slip the dogs of war" upon the Jihadists.
11.6.2007 8:06pm
InABigCountry:
Michael B: My point was to say that the question could have been rendered in a more pointed fashion - in a fashion that more explicitly and demandingly takes note of consequences.

Yes, putting your thumb on the scale will return results more to your liking. No question.

Michael B: E.g., "If you thought you might gain critical information, information that could avert death and mayhem among many civilians, by using a technique that some, perhaps many, consider questionable, while not permanently injurious, would you be willing to use such a technique?"

You ask a question that invokes "24", you get a response that has little to do with reality. "If Kitty Dukakis were raped and murdered" comes to mind. So when has torture ever been used to "avert death and mayhem among many civilians"? Evidence please.

Michael B: Perhaps it's your assumptions and your preemptive and unthinking sense of moral superiority talking. But that would be to question your own assumptions, it would require moral and intellectual seriousness, in lieu of such ad hominem insinuations and simplistic assumptions.

Ah, it's "moral and intellectual seriousness" to ask leading questions? Got it.

Michael B: I agree, you don't get it. This is about waterboarding rarely, though occasionally, applied, not torture in some indiscriminate or carte blanche fashion.

No, this is about giving the president/CIA/gov't agencies legal authority to torture anyone deemed a "terrorist" or "unlawful combatant." You have a surprising amount of faith in the power of government, and it is puzzling why you are so certain that people will be "rarely, though occasionally" tortured if this power is enshrined in law.

Michael B: The very fact you're using such excitable, absurd analogies suggests you aren't so much as attempting to "get it."

"Excitable, absurd"? From someone who puts forward the ticking-time-bomb scenario as the reason the president should be allowed to tortured whomever he or she deems a terrorist?

Michael B: Your moral view, as reflected herein, is more than a reified and incurious egoism, but only barely so.

How incurious of me to be against allowing the gov't to torture whomever it pleases! Such labels are badges of honor from those who are easily terrorized into empowering authoritarians.
11.6.2007 8:06pm
randal (mail):
I agree, you don't get it. This is about waterboarding rarely, though occasionally, applied, not torture in some indiscriminate or carte blanche fashion.

Nope, Michael B, you don't get it. Being able to say "we don't torture ever" is priceless compared to "we occasionally torture." There is no possible way that a smart American could conclude that the occasional torturing we do is worth it. So I guess you want America to fail.

If it makes you feel better, look. We can say we don't torture - ever - and still decide in the future to change our mind if we really have to. That's been the basic MO for years and years before Bush and Cheney blew it through ego and ineptitude, shining a huge spotlight on the issue. Now we have to get the world to trust us again. We will never be able to do that if we don't make a convincing show of being anti-torture. But the fascist Cheney-lovers are standing in the way.
11.6.2007 8:11pm
Anderson (mail):
The statute says that "the threat of imminent death" is a form of torture.

Well, to play devil's advocate here, it doesn't *just* say that.

"severe mental pain or suffering" means the prolonged mental harm caused by or resulting from—

(C) the threat of imminent death


IOW, it would seem that the threat of imminent death, alone, doesn't constitute torture; rather, it's only if said thread causes or results in "prolonged mental harm."

The problem I see here is that the statute can be interpreted to make every act of waterboarding subject to a subjective test: did *this* particular act of waterboarding constitute torture?

(Obviously, the waterboardER can't know in advance whether the victim will suffer this prolonged mental harm, but that's not an objection; strict liability. See Zubeda, 333 F.3d 463, 474 (3d Cir. 2003)) (intent of "persecutor" irrelevant).)

So, does the statute in fact fail to cover waterboarding?

I think the better approach is "severe physical pain," on the theory that the sensation of drowning is "pain," broadly speaking ... lungs burning as they gasp for air, and all that.
11.6.2007 8:15pm
jukeboxgrad (mail):
michael: "This is about waterboarding rarely, though occasionally, applied"

Just in case it's not already clear that I'm asking you this question: show us your proof that Bush has waterboarded only "rarely."

By the way, if waterboarding "rarely" makes us safer, then won't lots of waterboarding make us lots safer? And don't we want to be really, really safe? After all, American lives are at stake. Are you some kind of a pantywaist? (I can't remember which Bushist around these parts expressed the idea that we're not doing nearly enough waterboarding. I reassured him that we're probably doing more than is commonly known.)

In fact, since waterboarding is no worse than castor oil, which certain American moms force-feed to their children (commenter Laura in another thread unforgettably compared waterboarding with her commute), then how on earth could we possibly neglect to waterboard every single detainee? After all, they are terrorists. And they might have information that could save innocent American lives. Who can prove that they don't?

And why stop at waterboarding? Electric shocks can be used in such a way as to not leave marks, and not cause permanent (physical) damage. Likewise for all sorts of other things, like rape. Would you protect a terrorist from a few moments of harmless discomfort if there was any chance at all that American lives could be saved?

What say you? Are you soft on terror?

anderson: "it would seem that the threat of imminent death, alone, doesn't constitute torture; rather, it's only if said thread causes or results in 'prolonged mental harm.' "

I definitely understand your point, and I sincerely appreciate help refining the analysis. However, I think you're misreading the statute, and it has to do with the word "the." This is explained in more detail by me and others in the vicinity of this.

BTW, I bet you didn't really mean to suggest that this "thread" might result in "prolonged mental harm." But it's a great Freudian slip.
11.6.2007 9:07pm
Anderson (mail):
BTW, I bet you didn't really mean to suggest that this "thread" might result in "prolonged mental harm."

Obviously, I'll have to get back to you on that ....

Thanks very much for the clarification -- very subtle reading of "the." (I made the mistake of quitting that thread at the point where Edward I was supposed to have been the Framers' model for the executive.)

I confess to being a bit uneasy about that grammatically, at first glance, but it does have the advantage of correcting what would otherwise be absurd about the statute, and making sense of the definite article's being there in the first place. (Someone should get Language Log on the topic.)

I do wonder, on that reading, why they felt the need to say "prolonged" at all.
11.6.2007 9:35pm
Michael B (mail):
Being able to say "we don't torture waterboard ever" is priceless compared to "we occasionally torture waterboard." randal, with edits

Yes, and being able to say we will never go to war would be priceless as well. It wouldn't reflect well, at critical junctures, on our grasp of reality, but the idea of never going to war certainly is priceless, no question. Too, something that has yet to get through to some people, the subject is waterboarding, not torture in some general, broadly conceived sense. (And certainly not rape, jukebox, or are you recalling Saddam & Sons's rape rooms, human abattoirs, etc.?)

BigCountry, a couple of points only. Concerning having one's thumb on the scale. Absolutely I did, I hardly hid the fact, to the contrary - that was the point, or one of the points. CNN's question, via omissions and otherwise, effectively had their thumbs on the scales as well - for purposes of a different emphasis and bias. Iow there is no unbiased or "objective" way to put the question.

"You have a surprising amount of faith in the power of government, and it is puzzling why you are so certain that people will be "rarely, though occasionally" tortured if this power is enshrined in law."

You resort to simplifying, tendentious assumptions as readily as any. I have some faith in that line, but little. That's why, for example, checks and balances, separation of powers, the social contract in general as conceived along classical liberal lines, is what I have a measure of faith in, in terms of govt. I'm not interested in enshrining torture into law, to the contrary, I'm interested in posing questions (which is what I've done herein) that one side in the debate is not posing or considering and I'm interested in the idea of refraining from legally proscribing a practice such as waterboarding. That is the subject herein.

(I haven't even made up my mind in an absolute sense, but yes, I'm strongly leaning in that direction. The fact that so much circular reasoning, ad hominem inferences and attacks, BDS, silly reductionist language and assumptions, etc. are used, such as is exemplified in this thread, certainly doesn't persuade in the opposite direction.)

jukebox, I have no first hand knowledge. You? Where does your knowledge of its use, in terms of frequency, originate? Chomsky & Herman-esque authorities? Bush/Blair=Stalin/Hitler assumptions? Regardless, I can only defend what I'm forwarding, not others and not your own or others' assumptions. But if you have some knowledge to share ...
11.6.2007 10:10pm
jukeboxgrad (mail):
anderson: "I do wonder, on that reading, why they felt the need to say 'prolonged' at all."

I think the drafters simply wanted to make the point that experiencing such things as "the threat of imminent death" will inevitably cause not just "mental harm," but "prolonged mental harm."

And just to expand on a relevant point that is referenced (indirectly) in the other thread. Imagine that someone would like to distort the statute (ignoring "the") and read it as follows: "the torturer cannot be prosecuted until after the torturee is in a position to prove that he, personally, has experienced prolonged mental harm." In other words, the torturee is not in a position to even approach the court until after a "prolonged" period of time has elapsed. That seems patently absurd; it seems idiotic to imagine a statute designed to automatically install a "prolonged" delay before a particular criminal act can be prosecuted. (If someone can show a non-nonsensical example of such a thing, that would be interesting.)

Anyway, we can assume the drafters were not being absurd, and their usage of "the" helps us understand what they meant, which is that certain acts are presumed to inevitably cause "prolonged mental harm."
11.6.2007 10:33pm
jukeboxgrad (mail):
michael: "the subject is waterboarding, not torture in some general, broadly conceived sense"

You repeatedly assert that waterboarding is not torture. This requires you to ignore the long history of US courts treating waterboarding as torture. It also requires you to ignore plain language in our federal anti-torture statute (aside from UCMJ and GC), language which has been cited around these parts many times, which defines torture in a manner that encompasses waterboarding. I guess ignoring troublesome facts fits into your idea of "intellectual seriousness."

"And certainly not rape"

You have utterly failed to explain why the excuses you are making for waterboarding don't also apply to all sorts of other things, like rape. As a wingnut on another board recently claimed, no blood no foul.

"I'm interested in the idea of refraining from legally proscribing a practice such as waterboarding"

Trouble is, that "proscribing" has already happened.

"I have no first hand knowledge."

It's not just that you "have no first hand knowledge." It's that you don't even have something remotely resembling a reliable source, to back up the claims you make. You said this:

This is about waterboarding rarely, though occasionally, applied


You're essentially claiming (as many have) that we've only done waterboarding "rarely." The problem is not just that you don't have "first hand knowledge" to back up this claim. The problem is that you don't even have anything remotely resembling a reliable source to back up this claim. But of course this doesn't stop you from offering the assertion as if it's a well-established fact. And then literally in the same comment, you accuse others of not being willing to "question [their] own assumptions." This is at the exact moment that you are proving that you haven't the slightest idea how to separate your own assumptions from facts. Here's what that makes you: a joke.

"Where does your knowledge of its use, in terms of frequency, originate?"

Bush has admitted (via his anonymous leakers) doing it to three people. Bush also has a very distinct and well-established track record of twisting the truth to serve his purposes. Therefore it's very reasonable to guess that the number three is an understatement. In any event, three felonies is three too many.

Another reminder concerning "intellectual seriousness." I notice you don't have enough to tackle the question I addressed to you here.
11.6.2007 11:03pm
jukeboxgrad (mail):
junk, we still haven't given up hope that someday you will explain to us why you lied to us about UCMJ, despite repeated reminders that you did so. You lie with impunity, walk away, and then shamelessly show up in a subsequent thread, as if you expect to be viewed as an honorable person, and as if readers here, and the internet, have no memory.

If you were specifically interested in discrediting yourself, along with the criminals you're defending, you couldn't possibly do a better job. Keep up the good work.
11.6.2007 11:21pm
randal (mail):
Too, something that has yet to get through to some people, the subject is waterboarding, not torture in some general, broadly conceived sense.

Michael B, waterboarding is not the actual subject, it is a proxy. It is an example that demonstrates how empty Bush's "America doesn't do torture" statement is.

Personally I don't think very many people give any shits about whether a few terrorists get waterboarded. There are way worse things going on in the world than that.

The subject isn't even torture. That's also a proxy. The subject is America versus the rule of law. When America decides that it gets as many loopholes as it wants, and those loopholes get to remain as opaque as it wants, and those loopholes are in laws and treaties directly targeted at bolstering America's moral authority, then America cannot stand as a role model in the world.

Even if you are cynical enough to believe that it's silly for America to aspire to be a role model for its own sake, you are silly to believe that Americans' interests are best served through policies that undermine America's status as a role model.

In other words, it would benefit our own security to demonstrate to governments that it's important to take laws and treaties seriously. It is detrimental to our own security to demonstrate to governments how to go about taking laws and treaties as unseriously as you can possibly get away with. Bush's message to the world is roughly: Democracy is for show, and valuable only insofar as it gets you wealth and brownie points.

Love your use of "too" - I swear you stole that from me. :)
11.7.2007 3:41am
Anderson (mail):
The "the" reading makes more sense to me upon reflection. I can see the "prolonged" language as in the nature of a preamble, almost.

It's like if they banned "the degrading sins against nature, (a) fellatio, (b) anal sex," etc. -- no one would argue that one had to prove that a particular act of fellatio was actually degrading to that particular, um, fellator ....
11.7.2007 8:57am
jukeboxgrad (mail):
anderson, I think your analogy, and the idea of looking at it as a preamble, is exactly right.

randal: "it is a proxy"

Good point. It's a proxy in other ways, too. It's about the authoritarians steadily chipping away at the rule of law to find out how much we (American citizens) will let them get away with (and what propaganda methods work best). They're finding out the answer: a lot. And if we continue to let them, they will continue to advance this process, despite Hillary, via Hillary (and other Republican Lite enablers), and after Hillary.

The enemies of democracy who live inside the GOP have a long-term perspective, just like the enemies of democracy who live in caves. Like many things, democracy won't die overnight. It'll die the death of a thousand cuts.

These folks realize Dubya set back their cause, but in many ways he also advanced it, and set all sorts of key precedents. Next time around the front man will be just as much of a lawless corporatist. He just won't be a clown. Can you imagine where we would be if Bush was everything he is, except not spectacularly inept? 51% would be clamoring for a constitutional amendment to enable his third term. Like our enemies abroad, these folks are going to learn from their successes and their mistakes. The monarchists won't shoot themselves in the foot next time by hiring another obvious buffoon.

Speaking of broader issues, what's really driving this process is the centralization of campaign finance and media ownership. When you strip away all the layers and disguises, there's a small number of people behind both. It's about the centralization of wealth and power, and it's a self-perpetuating, accelerating process.

I'm not that much of a Ron Paul fan, but I think the Paul phenomenon indicates that there are actually a few people who see the big picture clearly.
11.7.2007 9:22am
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