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[Richard Painter, guest-blogging, March 29, 2009 at 1:50am] Trackbacks
Its just plain wrong:

My criticism of legal arguments justifying torture seems to have created much controversy this week. I recognize that citation to international law and the views of a former head of the Office of Legal Counsel does not conclusively establish the case against torture. Neither do the views of Senator John McCain, a man who experienced torture in Vietnam, nor the views of the Presiding Bishop of the Episcopal Church who wrote to Senator McCain.

One commentator asks me to differentiate between prohibiting torture and prohibiting consumption of broccoli. In an earlier era, President George H. W. Bush might have found this analogy amusing because he publicly stated that he disliked it when his mother made him eat broccoli. In light of what has happened in recent years, the matter should be viewed more seriously.

This is not an argument which a person wins by citing cases or finding ways in which the Constitution might conflict with treaty obligations the United States voluntarily entered into. This is a question of right and wrong, and there are certain things a civilized society does not do. Much of the work of an ethics lawyer, or any lawyer for that matter, is giving a client advice that amounts to common sense. The advice required on this question is that torturing prisoners is morally and legally wrong and that legal opinions seeking to justify torture will expose the United States to widespread international criticism and other adverse consequences. They did.

Of course I bring my own moral views to this question. It would be difficult not to. There is admittedly a gray area when a lawyer believes something is clearly legal but also morally wrong. Advice given to a client may vary depending on the circumstances and the lawyer. When something is widely viewed as being both illegal and morally wrong, however, constructing an argument to the contrary is a disservice to the client, even if the client appears ready to entertain such an argument. The lawyer's job is to say no.

In an earlier post I expressed some reservations about legislating certain aspects of personal morality (sex, alcohol, etc.). I worry that having too much law can encourage disrespect for the law. I fail to see why this is a reason not to have a law against torture. Simply because we do not have a law against everything, must we live in a society without laws against anything?

Finally, I did not take sides in any of my posts in the dispute currently afflicting the Episcopal Church. I did say that there are more important matters -- such as the torture issue discussed in Bishop Griswold's letter to John McCain -- than the personal life of the Bishop of New Hampshire. I hope that churches, and our government, will focus on these more pressing matters, of which there are many.

I also don't think anybody is interested in listening to Episcopalians argue about sex. When, however, an argument about sex spills over into an argument about money and real property, there is a subject about which passions truly run high. The resulting litigation over breakaway parishes, currently going on in Virginia and in many other states, involves Civil War era statutes on disposition of church property, trust law, canon law, church-state issues, corporate governance law and other fascinating questions. This litigation will entertain law professors and other bystanders, although I hope the Church does not bankrupt itself in the process.

NTB24601:
I'm not sure if this has already been discussed in the comments on the other posts, but the AP is reporting that a Spanish court has agreed to consider opening a criminal case against Alberto Gonzales, Douglas Feith, David Addington, John Yoo, the Hon. Jay Bybee, and William Haynes. The charges would stem from the legal advice they gave re: torture.
3.29.2009 2:08am
BABH:
Bravo! Lawyers must be animated by moral sentiments. Logic alone can produce only tautologies.

I think sometimes that legal education and practice can distract us from this central truth.


This is a question of right and wrong, and there are certain things a civilized society does not do. Much of the work of an ethics lawyer, or any lawyer for that matter, is giving a client advice that amounts to common sense... Of course I bring my own moral views to this question. It would be difficult not to.
3.29.2009 2:51am
Nick056:
Mr. Painter,

Your engagement with this issue, as represented on the VC, is a model of thinking through both ethical obligations and moral underpinnings. Maybe I'm unavoidably influenced by agreeing with several of your key conclusions, but, allowing that, I still think the process of your reasoning is an example to be followed. I wanted to offer you a hearty thanks for your excellent work on this subject.

Cheers.
3.29.2009 2:53am
Roger Schlafly (www):
So your real complaint is that some lawyers gave a legal opinion when you would have preferred a moral opinion?

IMO, listening to lawyers arguing about morals is a whole lot sillier than listening to Episcopalians argue about sex.
3.29.2009 3:54am
PersonFromPorlock:
The problem with the idea that "it's just plain wrong" is that American legal thinking consigns questions or right and wrong to the legislature. The lawyers' (including the judges) question is: "is it legal?"

I have held for a long time that "The law is the law" is just as much a moral abdication as "Befehl ist Befehl;" in fact, that the two statements are functionally identical. I agree with you on the repugnance of torture, but until the legal system drops the pretense that it's highest moral duty is to be amoral, arguably technically correct products like the torture memos are inevitable.
3.29.2009 4:01am
Splunge:
Maybe I'm just coming late to your exposition, and you've gone into all this in great detail earlier, but at least this post strikes me as tautological and in places sanctimonious.

Can we just stipulate that all civilized peoples eschew torturing prisoners? They do, you know. Even Saddam's secret police would call it something else.

The difficulty lies, as usual, in the definition of "torture." And the only reason we are having this debate in 2009 is because some people have made a significant attempt to shift the definition from stuff that actually causes physical damage (pulling fingernails out, burning with cigarettes, electrocution) to stuff that causes at most psychological damage (waterboarding) and in some cases is simply very unpleasant (standing in the cold all night) or repugnant (having your religious text o' choice pissed on).

I'm not disagreeing that this shift perhaps should be made. We've shifted what we call "cruel and unusual punishment" quite a bit since the Constitution was ratified. We've shifted other things, too. You can call it evolving standards if you like.

But it seems to me that denying that the argument is about the shift -- about whether it's legitimate or desirable -- is enormously disingenuous, almost to the point of intellectual dishonesty.

John McCain left Hanoi unable to raise his arms over his head. His peers left with broken limbs improperly set, scars, in many cases lifetime handicaps or pain. That is torture by any modern definition. Carelessly and matter of factly equating it to being scared absolutely shitless (but otherwise unharmed) by being waterboarded is dishonest. They are not the same thing. After some discussion we may want to classify them in the same category of morally repugnant things -- but they do not automatically fall into that category ipso facto.

I also found this statement a bit morally arrogant for my tastes:

This is a question of right and wrong, and there are certain things a civilized society does not do.

By what criteria, pray, could we conclude from observation that a given "civilized" society does not do things, including torture, murder, theft, violence, wholesale moral depradation of the most evil sort? Does it count if even one citizen does such things? So Josef Fritzl has contaminated all of Austria -- Austria can no longer be considered "civilized?"

Surely not. But then what exact percentage of wrong-doing by its citizens is the limit, eh? Was East Germany uncivilized, because perhaps a third of its citizens cooperated with the Stasi? How many people worked for Lavrenti Beria? Enough to pollute all of Russia, or not?

This is so much Jesuitical calculus, completely unworthy of a Christian. You cannot put a percentage there.

So what then? We are left, since we cannot look at the actions of the individuals in the society, to the mere laws and politics and moral statements of that society. If they say moral things -- if, for example, torture is not a stated policy of the government -- then we give them credit for being "civilized," regardless of what the men and women in that society actually do.

This I find Pharisaic in the extreme. (And the situation is not helped by the fact that the most evil governments in history have been those with directly avowed "moral" aims; Stalin starved millions, Mao murdered millions more, Mugabe has impoverished an entire nation, all in the name of high moral goals of equality, justice, and moral uplift. Government obsessed with morality is what the Inquisition was all about, the vile excesses of the Puritans, the Wars of Religion, and much horror besides.)

Whether we Americans are by and large moral or not has, IMHO, just about zip to do with what policies are espoused by the current Administration. I do not, after all, have perfect control over them. They do not and could not, except in the most shallow and tenuous way, represent the complete depth and breadth of a Christian conscience, should I possess one.

In short, I find the suggestion that a nation can be judged moral (or immoral) either reeks of pointless scholasticism or is morally shallow. In either case, it is offensive.

Men and women can be moral, or not, and should be judged thusly. Nationality is an interesting descriptor to attach to a man, but to transfer some of the properties of the man -- his capacity to be a moral actor -- to the nation is dehumanizing. Indeed, it's the modern equivalent of racism, of attaching the morality of a man to the color of his skin. To ask "Is America moral?" is very little different from asking "Is the black race moral?"

And, I suggest, it is not in the least Christian. Christ did not, after all, judge the morality of tax collectors as a corpus -- he judged each man he met, whether tax collector or not, whether Roman or not. He would find it repulsive that any American man should feel one whit more moral because his government has issued official statements abjuring torture, and equally repulsive that he should be judged immoral (without regard to his actual character) because it has not.
3.29.2009 4:07am
ReaderY:
In Roe v. Wade, the U.S. Supreme Court went perhaps its furthest in indicating that the legislation of morality is not a legitimate, or at least not a compelling, interest of government. In reaching its conclusions, the Roe Court in particular made decisions which, quite frankly, would seem to apply equally well to torture if one simply scratched out the word "abortion" and wrote in the word "torture" in crayon.

Of particular relevance is, for example, the Roe Court's declaration that the U.S. government has no compelling interest in the personal security of human beings outside the class defined by the term "person" as used in the Fourteenth Amendment:



The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. 51 On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54


The difficulty is that the U.S. Supreme Court went through essentially the same argument in Johnson v. Eisentrager, almost verbatim, in holding that the term "person" as used in the identically worded Due Process clause in the Fifth Amendment lacks "extraterritorial application," just as the Roe court said it lacks "pre-natal application", and hence the Due Process Clause no more gives protection to one than to the other:



If this Amendment invests enemy aliens in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers...

Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U.S. [*785] 244. None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it. [***HR11] We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.



Granted, whether Eisentrager applies in the particular case of Guantanamo Bay is disputed. Is it "extraterritorial"? Perhaps not. Is it necessary for an alien to be in the service of a "goverment" at war with the U.S., is Al Qaida a government? But these are perhaps technicalities, somewhat beside the main point. If we accept the basic principle that so far as the U.S. constitution is concerned torture is as reasonable a procedure as abortion -- simply one of the morally difficult security choices Americans make in consultation with their security professionals, much as they make morally difficult reproductive health decisions in consultation with reproduction health professionals -- and if we further accept Roe's basic idea that in a conflict between the well-being of persons to whom the Due Process Clause applies as vs. biological entities to which it doesn't, the liberty and well being of persons outweighs moral feelings towards non-persons (and most particularly when those moral feelings come from bishops and similar known oppressors of personal liberties), these details about what exactly the U.S.-Cuba treaty says or what sort of entity Al Qaeda is would seem essentially technicalities, much like the waiting periods and such anti-choice people grasp at in the abortion context.

So we come to it. What exactly makes an enemy combatant any more worthy of protection, particularly of protection which might potentially put Americans at risk, than a third trimester fetus? Why should liberals' religious beliefs and concepts of morality suddenly get enforced by the state when the courts have pretty well established that conservative's religious beliefs and concepts of morality are pretty much an obstacle to a reasonable society which may get some grudging lip service by the state as long as it doesn't actually pose an undue burden on fundamental rights. And it can scarcely be seriously argued that security is less fundamental to Americans than reproductive health.

It's worth going through the Roe v. Wade analysis of constitutional provisions oneself and see if it's really equally applicable to extraterritorial enemy combatants. Try it! Go through that paragraph in Roe v. Wade line by line, scratch out the word "fetus", and write in the word "extraterritorial enemy combatant" in crayon, just like Monty Python did to get a license for Eric the Fish. Every phrase still applies and makes perfect and complete sense. Enenmy combatants don't count in censuses, they can't be representatives or senators, they're not admissable as immigrants, emoluments have no application to them, they can't be electors, etc., etc. Just the same as fetuses! One argument is as legitimate as the other!

It seems clear that nobody in the liberal camp actually believes in the exercise the Roe v. Wade court did of going through the constitutition provision by provision and asking if it applies to fetuses. They're perfectly happy with the outcome, of course, but they're not actually willing to treat their own deeply held beliefs as being mere subjective emotions when the analysis contradicts what these beliefs say.

Which is perhaps well and good. It's quite reasonable that nobody actually buys the Roe v. Wade argument except when it happens to result in an outcome they would have wanted anyway. It's a bad argument.

It's quite reasonable for the U.S. constitution to provide maximal protections to citizens, society's members, and to those with whom its members interact on a day to day basis, and to require lesser minimal protections the farther removed from society one becomes.

What was absurd about Roe, as with Dred Scott, was this idea that the constitution imposes a ceiling on the protection of non-members, the idea that courts should be in the business of voiding protection given non-members. What was also not only absurd, but pernicious, is the idea that interest in protecting non-members represents a mere traditional morality, something archaic and not deserving to be part of modern society. Such thinking imposes a grave danger of reaping the whirlwind.

The fact the Roe court endorsed an argument that can perfectly well be used to justify torture of non-citizens -- and makes perfect logical sense when so implied -- is some indication of how dangerous a territory the court entered.
3.29.2009 4:53am
d-day (mail):
What criticism of the legal argument was there?

You state:

The questions answered in the memos never should have been asked.
The subject matter was grotesque.
One does not have to be an expert in international law, or even a lawyer, to read this and know that something is wrong.


And when you finally do mention the legal arguments, you state:

I will not reiterate the many specific criticisms of the memos already made by those with far more expertise than I.


Again, what criticism of the legal argument? The only thread I can draw to connect these posts is the amorality of making an argument at all.

I don't see how you can make that argument without a serious examination of the role as lawyer as an advocate in the system. That didn't happen in these posts. Is that something a government ethics lawyer would have the particular expertise to do? Are we to turn to government ethics lawyers to render moral judgments now? I wouldn't expect a discourse on morality from a government ethics lawyer any more than I would a DOJ lawyer.

The fact is, the lawyer is not the ultimate decisionmaker- the client is. The lawyer has to subsume himself into the advocate role to properly advise the client. All lawyers know this - every professional responsibility course will tell you of the lawyer's obligation to represent the unpopular and even the guilty. The lawyer should disappear. The moral calculus, the moral decision, and the moral opprobrium belong to the client. How can a lawyer - not a philosopher or theologian - possibly presume to impart any greater moral guidance to the president than the president himself possesses. It strikes me as correct that the arbitrer of moral decisionmaking be the elected official, not the hired advocate.

You state: "The lawyer’s job is to say no." How can that possibly, possibly be true. That doesn't comport with any legal ethics I've learned or how any lawyer I know actually practices. Lawyers are advocates providing a specialized type of advice. It is presumptuous for lawyers to presume a special moral knowledge merely from their legal expertise.

Finally, (and I noted this in another comment:


The job of an ethics lawyer and indeed any lawyer who is a generalist is to spot issues and to identify both legal and nonlegal risks to the client.



I would not expect a lawyer to render opinions as to nonlegal risks. If my client is a business, for example, and there are business ramifications, I won't tell the client what to do. I'll tell him - here is the legal risks inherent in each of these options. The ultimate decision is up to the client. The client knows the business risks, not me.

I would particularly refrain from offering opinions or identifications of nonlegal risks, and I believe that is the better practice. Identifying particular risks outside your expertise implies that you have considered the universe of risks and these are the ones you've identified. In actuality, they're little more than a layman's guess. I would have no way to non-negligently complete the undertaking that is implied.

I don't understand how you make all of these sweeping pronouncements about the appropriateness of the lawyers' conduct without giving any thought or reference what the lawyers' obligations actually are. If there are arguments that you can make that actually support your conclusions, you haven't made them in this forum.
3.29.2009 5:27am
Don Meaker (mail):
Torture has a definition. It is treatment that causes permanent harm.

Waterboarding is not torture. It causes no permanent harm. It is performed on US service members as part of their training, meeting the reciprocity standard.

Terrorists are, to my knowledge and belief, not protected by the Geneva accords. This was intentional, to provide an incentive to those who follow the laws and customs of war, by providing protection. The decision to act as a terrorist has consequences. It is a horrible decision, and if we could make the consequence more terrible, it would be completely appropriate. Being nice to murderers and cruel to nurses, doctors, bankers, is morally bankrupt.

Pretending that you can drop the context in which a decision is made is a common propaganda approach. You can not drop the definition of torture, then complain that torture is permitted. That method is called a "Lie".
3.29.2009 5:32am
Aaron Denney (mail):
Splunge: you can make the argument that ipso facto waterboarding does not belong in the same class as inflicting permanent injuries. Historically, however, we hae treated them that way, to the extent of prosecuting those who have done so.

John Yoo went so far as to agree that there is nothing preventing the executive from crushing the testicles of a suspect's son in pursuit of national security goals. This easily meets any non-topsy-turvy definition of torture.
3.29.2009 5:33am
Perseus (mail):
When something is widely viewed as being both illegal and morally wrong, however, constructing an argument to the contrary is a disservice to the client, even if the client appears ready to entertain such an argument. The lawyer’s job is to say no.

If a government lawyer believes that such an argument would be illegal and immoral, the proper response is to resign.

Also, how does it constitute "widely viewed as being both illegal and immoral" when only 31% of Americans believe that torture is never justified (and 44% believe that torture is sometimes or often justified)? Perhaps you meant the widely held views of law professors?

there are certain things a civilized society does not do.

In other words, you believe in unilateral disarmament.
3.29.2009 5:40am
MQuinn:
History will not judge the legal bar kindly for possessing substantial elements that are willing to re-define centuries-old definitions of torture (such as waterboarding) in the name of national security. Some very dark parts of history, and some very bad people, have engaged in just such an exercise, and history has not been kind.

Obviously, this point will not -- and is not -- designed to persuade anyone. But, I doubt very seriously that the pro-torture-types in the comment thread will debate my issue, either.
3.29.2009 8:57am
Cornellian (mail):
there are certain things a civilized society does not do.

In other words, you believe in unilateral disarmament.


In other words, you wrongly believe that torture is a weapon by which a
society can defend itself.
3.29.2009 9:01am
jukeboxgrad (mail):
splunge:

some people have made a significant attempt to shift the definition from stuff that actually causes physical damage … to stuff that causes at most psychological damage


meaker:

Torture has a definition. It is treatment that causes permanent harm.


So then if I apply electric shock to your genitals in a manner that causes no "physical damage" and no "permanent harm," then what I have done is not torture, right?

The folks who are trying to "shift the definition" are you. For example, there is a long history (pdf) of US courts treating waterboarding as a form of torture. Even in the absence of "physical damage" and "permanent harm."

And the federal anti-torture statute does not mention "physical damage" or "permanent harm."

But feel free to pull definitions out of your imagination, while ignoring what's actually in the statute, and ignoring what's actually demonstrated in our legal history.

================
meaker:

Terrorists are, to my knowledge and belief, not protected by the Geneva accords.


Wrong. Common Article 3 applies to everyone. Even "terrorists." Even Bush finally was forced to acknowledge that we are bound by CA3. His White House referred to Common Article 3 as "The Standard That Now Applies To The Treatment Of Detainees By U.S. Personnel In The War On Terror."
3.29.2009 9:13am
matt b (mail):
lawyers are an arrogant bunch.
3.29.2009 9:31am
Cornellian (mail):
Politicians and generals are, on the other hand, famous for their modesty.
3.29.2009 9:36am
RPT (mail):
As I noted on a prior thread, there will no resolution of this issue. However, it is also worth noting here that every torture supporter operates from a factual error, that is, that the Guantanamo detainees were in fact "soldiers" or "terrorists". They were not. Many, if not most, were not fighters at all and either known to be completely and factually innocent (i.e. the bounty hunter victims), or it was known that there was no evidence of any kind that they knew anything or had done anything. The Yoo, et al, rationale is that the executive could capture anyone anywhere and do anything to them, without limitation.
3.29.2009 9:39am
kdonovan:
Cornellian wrote:


In other words, you wrongly believe that torture is a weapon by which a society can defend itself.


I think the above is mistaken.

There are basically 3 reasons to torture: to gain a sadistic glee, as a deterrent to others, and to gain useful information. It is this third reason that drove actions like water boarding and it seems to have been successful at getting KSM to talk about his organization and its plans for future violence. This knowledge then led to action which disrupted those plans. If this is true then water boarding was a weapon effective for the purpose it was used for. It might still be worth foregoing using it if the moral or PR costs of using it are judged to be higher than the gains from security.

However the case against torture is not that it doesn't work as a method to gain information but that even though it does work the the costs of using it are too high. Further, if one really opposes torture on moral and not pragmatic grounds, to argue that torture is ineffective is probably harmful to to the cause of banning it because it leads to the situation where one only has to show where it has been effective to overcome the argument.
3.29.2009 10:00am
Bill Snowden (mail):
Every client is entitled to the best legal representation his attorney can provide. This is how we as a profession justify our vigorous defense of the most heinous criminals. In such cases any defense attorney worth his salt never considers the moral implications of allowing a very guilty person to walk free. Not part of the job.

Likewise, Mr. Yoo and others would have be remiss to place their moral judgments in the memos they were asked to research and write. They were asked to apply the law as it existed to the facts before them.

As a side note, while I can certainly appreciate the moral arguments of those who oppose torture (by whatever their definition) I would ask how they balance their position with the possible consequences, i.e., how do you explain to the families of dead Americans that we nonetheless have the moral high ground because we didn't torture to secure information that would have prevented those deaths?
3.29.2009 10:10am
pmorem (mail):
There is admittedly a gray area when a lawyer believes something is clearly legal but also morally wrong. Advice given to a client may vary depending on the circumstances and the lawyer. When something is widely viewed as being both illegal and morally wrong, however, constructing an argument to the contrary is a disservice to the client, even if the client appears ready to entertain such an argument. The lawyer’s job is to say no.

It's really not your job. In your life, you have probably received a total of zero votes for President.

You also bear no real risk for the decision either way. Jamie Gorelick seems to have suffered no personal anguish or loss from her advice to Clinton. Doing things all nicely and morally, she was. You can whitewash your tombs, or wash your hands of the whole thing, claiming the moral high ground. You have that luxury.

The President, though, gets it either way. That's part of the job.

Sometimes there is no moral high ground, and all directions are "down in it".

That's the "responsibility" part of "power".

If you want to be President, run.

If you win, then you can make those decisions.

Until such time as those two items come to pass, you are not my President. Please stick to the law, or pontificating about it, or whatever it is you want, but don't try to force your decisions about right and wrong.
3.29.2009 10:27am
Anderson (mail):

Mr. Painter, thanks again for your posts, and I understand your frustration with the moral blindness on the torture issue.

You may not have realized you were guest-posting on a legal blog where, if I'm not mistaken, not a single regular poster has agreed that the Bush Administration tortured people in violation of U.S. law. (I would be happy to be corrected.)

Naturally, torture supporters find this a congenial environment.
3.29.2009 10:29am
SamW:
What are some of you talking about? Yoo was not suppose to be an "advocate." For the benefit of non-lawyers and law students, in this case, Yoo was acting as advisor and it is unethical for legal advice to be misleading just because, that's the way the cleint wants it
3.29.2009 10:31am
Richard Aubrey (mail):
I think we need to agree on one thing: Torture can work, does work, in gathering information. Yes, all the caveats. But it does work. The Germans were nice, sometimes, but that doesn't mean they didn't torture other times. I'm thinking primarily of western POWs getting the easy treatment and the various resistance fighters something different.
However, to pretend it does not and never works and that other techniques will always work is a cop out. That is, it allows the arguer to avoid the literal prospect that foregoing torture has a price.
And it allows the arguer against torture to avoid the implications involved in the choice and the price.
Cheap. Lame. Cowardly.
Tell us what you'd be willing to give up as a result of no torture at all. Then tell everybody, particularly those who are most likely to pay the price for your scruples.
Second, let's remember that making this argument in the wider world will turn into comedy if you continue hauling in being wrapped in an Israel flag or being interrogated by a scantily-dressed woman. Or if the listener can say, I had worse than that in Basic. (Spare me the caveats about volunteering and knowing it wouldn't go to death. The point is the public perception about the argument.)

Lastly, where did gay piskie bishops come in?
Oh, well. It will allow the arguers to pretend the property issues are "only about sex", as Clinton's perjury was so often misrepresented.

SSDD.
3.29.2009 10:32am
Oren:

Torture has a definition. It is treatment that causes permanent harm.

Actually, the definition specified by US law makes no reference to permanent harm. In fact, it does not even make reference to physical harm at all, since it includes mental anguish resulting from the threat of physical harm or death.

Now that you have a clear citation, perhaps you can discuss its significance and interpretation.
3.29.2009 10:33am
loki13 (mail):
Richard Painter,

I would like to thank you for your numerous posts this week. I have found them to be both informative and iluminating. I am sorry that you have been caught up in the volokh "torture" debate; whether it is a byproduct of Jack Bauer-induced fantasies, or peculiar to some of our own commenters, it appears that this is a debate that will not go away.

And, in the end, you'll just have to be comfortable that you know what torture is. Kind of like you know what is is.
3.29.2009 10:34am
buford puser (mail):

However the case against torture is not that it doesn't work as a method to gain information but that even though it does work the the costs of using it are too high.

No, the case is that
1) it has done incalculable harm to the US by damaging our image as a moral actor, provided aid and comfort to our enemies, and is exactly what Al Quaeda wants us to do;
2) it is plainly illegal as a matter of US and international law;
3) IT DOESN"T WORK TO PRODUCE USEFUL INFORMATION: see the case of Abu Zubaida, where "not a single significant plot was foiled as a result of Abu Zubaida’s tortured confessions, according to former senior government officials who closely followed the interrogations."
3.29.2009 10:36am
Oren:

It is this third reason that drove actions like water boarding and it seems to have been successful at getting KSM to talk about his organization and its plans for future violence. This knowledge then led to action which disrupted those plans. [CITATION NEEDED]


I'm aware that KSM was waterboarded and that he spilled his guts, but I've not seen anyone claim a particular action was taken pursuant to that information or that said action disrupted some specific act.
3.29.2009 10:36am
Cornellian (mail):
I think we need to agree on one thing: Torture can work, does work, in gathering information.

No it does not work, it gets you what the victim thinks you want to hear.
3.29.2009 10:46am
SamW:
Richard Aubrey is not correct that torture produces useful information, perhaps the most that can be said is that torture provides doubtful information. If one is being utilitarian, than when deciding to torture, it is this product, which guides the choice.
3.29.2009 10:50am
buford puser (mail):
Those 24 fans who believe torture produces useful intelligence might want to explain the confessions of hundreds of witches to medieval Inquistors, which typically included Satan having granted them the power to fly through the night to their sabbath.
How many plots do you imagine were disrupted on the basis of this actionable intelligence, which was, of course, just what the prejudices and preconceptions of the torturers preconditioned them to believe was actually true?
3.29.2009 10:57am
jukeboxgrad (mail):
rpt:

Many, if not most, were not fighters at all


Correct. Many of the people in Gitmo appear to be innocent bystanders. That's explained here:

Denbeaux, who has worked with Seton Hall University's Law School in studying the Guantanamo detainees' cases, said that 55 percent have never been accused of committing a hostile act against the United States or its allies and that 60 percent were neither fighters for the Taliban nor for al-Qaeda.


Those claims are well-documented (pdf).

More proof that we locked up innocent people is here.

================
kdonovan:

it seems to have been successful at getting KSM to talk about his organization and its plans for future violence. This knowledge then led to action which disrupted those plans.


Do you have any evidence to support that claim?

================
snowden:

how do you explain to the families of dead Americans that we nonetheless have the moral high ground because we didn't torture to secure information that would have prevented those deaths?


I wonder if you have any evidence that we ever prevented deaths by torturing someone.
3.29.2009 11:06am
Cornellian (mail):
Those 24 fans who believe torture produces useful intelligence

Here in the real world you're not an omniscient viewer watching all the relevant stuff happening in real time (with the irrelevant stuff conveniently edited out). When you watch Jack torture some guy, you already know what's happened, what the guy knows, what Jack doesn't know and can watch from the comfort of your couch until the guy tells Jack what we already know. The real world doesn't work that way.
3.29.2009 11:09am
MarkField (mail):
In one sense its depressing to see the same old tired arguments trotted out in "defense" of torture, often by the same old tired commenters. This thread is instructive, though, in the internal contradictions it exposes:

1. What we did wasn't torture (because we all know torture is wrong and shouldn't be done).

2. Torture is ethically justified because it's useful to obtain information necessary to keep us safe.

3. Attorneys advising on the law should never consider ethical issues when giving advice.
3.29.2009 11:14am
krs:

Much of the work of an ethics lawyer, or any lawyer for that matter, is giving a client advice that amounts to common sense. The advice required on this question is that torturing prisoners is morally and legally wrong and that legal opinions seeking to justify torture will expose the United States to widespread international criticism and other adverse consequences. They did.
...
In an earlier post I expressed some reservations about legislating certain aspects of personal morality (sex, alcohol, etc.). I worry that having too much law can encourage disrespect for the law. I fail to see why this is a reason not to have a law against torture. Simply because we do not have a law against everything, must we live in a society without laws against anything?

These are fair points, but when someone asks a lawyer for advice, they're particularly interested in the lawyer's personal feelings. If a state legislator wants to pass a law restricting the availability of abortions and wants to know how the law would fare in litigation, getting either of the following bits of advice would be entirely useless:
(1) conservative lawyer: "Abortion is murder, and we have a moral duty to prevent it wherever possible. Your law is a good step in that direction, and anyone who would criticize it can be dismissed as morally depraved or confused."
(2) liberal lawyer: "A woman's right to choose is sacred, and the state has no business intruding on her choice of what to do with her body. This legislation should never see the light of day."

Although torture doesn't involve competing rights in quite the same way, I think there's still some utility in being able to ask a lawyer exactly what torture is and exactly what the legal bounds are of the U.S.'s obligation not to torture. Accordingly, if a lawyer responds to a request for legal advice by giving only his personal moral view about torture, then that lawyer is taking the easy way out and not doing his job. Maybe it's different with an ethics lawyer, as ethics go beyond the letter or treaties and the constitution, but if the point is that lawyers hired to give legal advice should in some circumstances respond by giving only their personal moral views, then I disagree.
3.29.2009 11:16am
Richard Aubrey (mail):
While torture gets the guy to tell you what he thinks you want to know, it is not invalid for that reason. There are two more considerations: One is to cross check info, and the other is to ask questions whose information can be checked.
IOW, this is not taking the victim's word in isolation.
Read about how the Nazis rolled up the network that supported Heydrich's assassination. Worked.
3.29.2009 11:20am
buford puser (mail):

While torture gets the guy to tell you what he thinks you want to know, it is not invalid for that reason. There are two more considerations: One is to cross check info, and the other is to ask questions whose information can be checked.
IOW, this is not taking the victim's word in isolation.

IOW, toture-based intelligence can be useful, if it can be independently conformed, ie is redundant?
3.29.2009 11:25am
Pragmaticist:
Those who contend that torture should never be employed under any possible circumstances, can bask in their own moral integrity and admire the beauty of their own "clean" hands, after an untortured terrorist yields a nuclear explosion that wipes out untold numbers.

What justifies or even requires committing an "evil"? If it's the only possible way of averting an even greater evil.
3.29.2009 11:27am
buford puser (mail):
IOW, toRture-based intelligence can be useful, if it can be independently confoIrmed, ie is redundant?
{Lesson:Preview, preview, preview}
3.29.2009 11:29am
Syd Henderson (mail):
3.29.2009 5:27am
(link)
Don Meaker (mail):
Torture has a definition. It is treatment that causes permanent harm.


Really. So you think putting electrodes to someone's testicles and running current through them would not be torture? Exactly what planet are you living on?
3.29.2009 11:30am
MarkField (mail):

Although torture doesn't involve competing rights in quite the same way, I think there's still some utility in being able to ask a lawyer exactly what torture is and exactly what the legal bounds are of the U.S.'s obligation not to torture.


Asking the question this way presupposes that you've already included torture within the realm of legitimate discourse. It's not. It's more like rape or child molestation, to which the proper reaction to a request for legal advice about whether to commit it is disgust.
3.29.2009 12:05pm
MarkField (mail):

Those who contend that torture should never be employed under any possible circumstances, can bask in their own moral integrity and admire the beauty of their own "clean" hands, after an untortured terrorist yields a nuclear explosion that wipes out untold numbers.


Repeat after me: "24" is just a TV show. IT'S NOT REAL.

If you have any facts showing that someone was tortured and that the information gained successfully thwarted a nuclear terrorist attack in real life, then you can approach the President and ask for a pardon.
3.29.2009 12:07pm
Andrew J. Lazarus (mail):
It is really, truly extraordinary the lengths to which commenters will go to justify (American) torture, and to justify not doing anything about it. Half the thread reads like something Germans would have been writing just about now—if they had won!

Let's take some of these points, once again, in detail.

Waterboarding has been considered a form of torture for centuries. A waterboarding apparatus identical to the one we are believed to use is part of a Cambodian anti-Khmer Rouge Museum.

Other methods that have, until now, been universally described as torture do not leave physical marks, for example, sleep deprivation, which was a favorite of Soviet Bloc interrogators. You can check Darkness at Noon (fiction) or Menachem Begin's autobiography (presumably, non-fiction) for examples. Forced standing also falls into this category.

The idea that these are not torture is entirely novel, and is driven entirely by the discovery that US interrogators have used practices and "therefore" we must cobble up some special pleading that they are not torture. If it turns out we are also using The Rack, the same sorry list of ethically-challenged commenters will show up, rechristening the practice as "stretchboarding" and claiming it isn't really torture either.

Once this line of defense is breached, we have to listen to anti-historical claims that at least torture provides valuable information. Again, this is only a consequence of red-white-black-and-blue American torture. Other countries' torture results in barbaric miscarriages of justice, unless you really do believe the Iranian Jewish shoe salesman who confessed to being a Mossad agent. Torture is effective as a terrorizing agent, and it can be used as a pseudo-investigative tool when you don't care about false positives. That probably is true of the Bush/Cheney Administration. To date, I don't believe there is a scrap of evidence of a terrorist threat thwarted by torture if you don't count examples where the corroboration is also the fruit of torture.

And when this argument, too, must be discarded—when even Nazis couldn't afford false positives because of resource constraints, they didn't use torture—the final fallback is that the President of the United States is authorized to give out triple-oh licenses to torture and that the OLC was justified in ignoring a long line of cases going back to John Marshall that this is not so. We did not consider it "lawfare" to hang Japanese generals whose treatment of American POWs was similar to the practices we have now adopted. I don't know whether the Japanese Imperial Army bothered with legal memoranda, but I doubt if we would have treated the Imperial Legal Counsel very nicely if we had.

All of these torture advocates dream they are on 24 or are playing 007, and it's probably not an accident that by appearances you couldn't trust a single one of them in a bar fight. I asked a doctor friend if it were possible the United States had been led by a literal madman under the Cheney Administration, given the possibility of subtle brain damage from hypoxia during a cardiac episode. But the lesson of millennia is that there are always cheerleaders available for the evil impulses of humanity.
3.29.2009 12:13pm
Roger Schlafly (www):
If you favor some particular definition of torture and you think that it is wrong is all cases, then I suggest passing a law against it. Or show that it is already illegal.
3.29.2009 12:33pm
C. Gittings (mail) (www):
This isn't about morality in the loose sense it's being used here.

This about the FACT that George Bush, Dick Cheney, Donald Rumsfeld, David Addington, and Jon Yoo, et al., are WAR CRIMINALS in exactly the same sense that the Nazis were.

The only difference is that they didn't commit genocide, and all the arguments that folks are making here for excusing their crimes are identical to the arguments the Nazis themselves used. It's just disgraceful that any American citizen would advocate or excuse such crimes.
3.29.2009 12:36pm
Michael Ejercito (mail) (www):

but the AP is reporting that a Spanish court has agreed to consider opening a criminal case against Alberto Gonzales, Douglas Feith, David Addington, John Yoo, the Hon. Jay Bybee, and William Haynes. The charges would stem from the legal advice they gave re: torture.

Then we can charge Spanish officials with war crimes


I'm not disagreeing that this shift perhaps should be made. We've shifted what we call "cruel and unusual punishment" quite a bit since the Constitution was ratified. We've shifted other things, too. You can call it evolving standards if you like.

So what is to stop standards from evolving so that scourging is not considered torture?
3.29.2009 12:43pm
C. Gittings (mail) (www):
Oh my, there already is a law against torture Roger -- and against "'violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" or "outrages upon personal dignity, in particular humiliating and degrading treatment".

There are also laws against simple and aggravated assault, kidnapping, murder, etc.

The real problem here is how to get war criminals like George Bush and Dick Cheney to actually OBEY the law, not enacting more laws for them to ignore and violate.

See:

18 USC § 113 (assault within special maritime and territorial jurisdiction)

18 USC § 371 (conspiracy)

18 USC § 1111 (murder)

18 USC § 1201 (kidnapping)

18 USC § 1505 (obstruction of proceedings before departments, etc)

18 USC § 1509 (obstruction of court orders)

18 USC § 1512 (tampering with a witness, victim, or an informant)

18 USC § 1519 (destruction, alteration, or falsification of records)

18 USC § 2340 (torture)

18 USC § 2441 (war crimes)

10 USC § 881 (conspiracy)

10 USC § 893 (cruelty and maltreatment)

10 USC § 897 (unlawful detention)

10 USC § 928 (assault)
3.29.2009 12:43pm
Oren:

Those who contend that torture should never be employed under any possible circumstances, can bask in their own moral integrity and admire the beauty of their own "clean" hands, after an untortured terrorist yields a nuclear explosion that wipes out untold numbers.

And those of us that haven't allied ourselves with the aliens from Neptune will surely fall victim to their powerful psychic gaze.
3.29.2009 12:46pm
Michael Ejercito (mail) (www):

We did not consider it "lawfare" to hang Japanese generals whose treatment of American POWs was similar to the practices we have now adopted

Which POW's were tortured by Americans?
3.29.2009 12:46pm
mattski:

Read about how the Nazis rolled up the network that supported Heydrich's assassination. Worked.

Let's stipulate that torture might be effective in a minority (perhaps very small minority) of cases. Is that sufficient justification to adopt it as a policy?

There is a consensus among civilized people that it would not be sufficient justification. One--I find--very compelling reason is that by the very nature of it's being only incidentally effective it's use is bound to profligate on the fear-driven suspicion (not unlike the diseased mindset of a compulsive gambler) that, well, maybe this time we'll get that crucial nugget of intelligence which will save the world...

Torture is not only disgusting and repugnant, it is both a symptom and a driver of paranoia.
3.29.2009 12:54pm
Michael Ejercito (mail) (www):

The real problem here is how to get war criminals like George Bush and Dick Cheney to actually OBEY the law, not enacting more laws for them to ignore and violate.

You forget that only losers are tried for war crimes.

. . .The investigators,�? he said, “would put a black hood over the accused’s head and then punch him in the face with brass knuckles, kick him and beat him with rubber hoses. . . . All but two of the Germans, in the 139 cases we investigated, had been kicked in the testicles beyond repair.- Washington Daily News, January 9, 1949
3.29.2009 12:56pm
Michael Ejercito (mail) (www):

All but two of the Germans, in the 139 cases we investigated, had been kicked in the testicles beyond repair. Washington Daily News, January 9, 1949

This is a miscite.

It was actually in the Sunday Pictorial , January 23, 1949.
3.29.2009 12:59pm
Roger Schlafly (www):
[C. Gittings] This about the FACT that George Bush, Dick Cheney, Donald Rumsfeld, David Addington, and Jon Yoo, et al., are WAR CRIMINALS in exactly the same sense that the Nazis were.
And I suppose that you think that the OLC memos were wrong because they did not acknowledge this "fact"?

The Democrats control the Congress. They could have impeached Bush and Cheney of you were right. Oh yeah, a couple of Congressmen did want to do that. Cindy Sheehan sounds like she wants to impeach Obama already.

I suggest that you read up on what Bush actually did, and what the Nazis actually did.
3.29.2009 1:04pm
MarkField (mail):

If you favor some particular definition of torture and you think that it is wrong is all cases, then I suggest passing a law against it. Or show that it is already illegal.


Ah, the most intellectually dishonest argument of them all. As though there weren't already specific statutes barring torture and its numerous lesser included crimes.
3.29.2009 1:08pm
mattski:
"profligate" should have been "escalate" ... whoops.
3.29.2009 1:12pm
Ken Arromdee:
There is a consensus among civilized people that it would not be sufficient justification.

Someone above you gave a reference showing that "only 31% of Americans believe that torture is never justified (and 44% believe that torture is sometimes or often justified)?"

I guess there isn't a consensus. (Or else you're going to use the No True Scotsman fallacy.)
3.29.2009 1:27pm
C. Gittings (mail) (www):
Roger,

No -- The memos are wrong because they are literally fraudulent and fallacious, and Bush, et al., are war criminals because on information and belief, that is what the fact show -- including the memos and the rest of their public record.

And I'm not talking out of my hat: I've been investigating these crimes more than full-time since November 13, 2001. That was the day they issued to the "Presidential Military Order on detentions etc" ("PMO"). The minute I read that document I understood that it's only purpose was to provide legal cover for violating the IMT Charter (1945) that was used to try the Nazis at Nuremberg -- it literally couldn't have any other purpose, since our domestic legal system and our military justice system are both perfectly capable of trying charges against anyone who to whom the PMO might apply, and hence the only purpose of the PMO was to circumvent the applicable laws in violation of the laws of war.

Addington based it on the order FDR issued for the Quirin commission, but he ignored the fact that Geneva 1929 was in effect at the time and Geneva 1949 makes it very clear that such procedures are illegal under the laws of war.
3.29.2009 1:33pm
second history:
Splunge said:

The difficulty lies, as usual, in the definition of "torture." . . . Carelessly and matter of factly equating it to being scared absolutely shitless (but otherwise unharmed) by being waterboarded is dishonest. They are not the same thing. After some discussion we may want to classify them in the same category of morally repugnant things — but they do not automatically fall into that category ipso facto . . .

Don Meaker said:

Torture has a definition. It is treatment that causes permanent harm.

Waterboarding is not torture. It causes no permanent harm. It is performed on US service members as part of their training, meeting the reciprocity standard.


You are right, torture has a definition, just not the one you're are giving it. It is defined in 18 USC PART I CHAPTER 113C § 2340 as


"[A}n act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control . . " and further defines “severe mental pain or suffering” as the "prolonged mental harm caused by or resulting from the intentional infliction or threatened infliction of severe physical pain or suffering; the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality. . ."


Let's play the game Who Said That? True or False, were the following statements made by former detainees of Gitmo:


". . .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 ...they would lash me to a stretcher then prop me up against a table with my head down. . . .They would then pour about two gallons of water from a pitcher into my nose and mouth until I lost consciousness... {T}hey laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air.... They then began pouring water over my face and at times it was almost impossible for me to breath without sucking in water."

"[We] were strapped to stretchers and warm water poured down our nostrils until we were about ready to pass out . . [They] strapped him to a stretcher and elevated his feet and then poured on his face so that it was almost impossible for him to get his breath. . . [The victim] was then taken into the corridor, strapped to a stretcher, which was tilted so that his head was toward the floor and feet resting on a nearby sink. Water was then poured down his nose and mouth for about twenty minutes..."

If you said these statements were made by Al Qaeda suspects, you would be wrong. The quotes are from affidavits of American POWs tortured by the Japanese during WW II. These statements were used to convict a series of Japanese officers at the end of the war for committing war crimes. See DROP BY DROP: FORGETTING THE HISTORY OF WATER TORTURE IN U.S. COURTS, pp. 10, 21-22. Waterboarding has been prosecuted since the Spanish-American War by the US military and US courts.


As far as permanent harm, waterboarding can cause permanent psychological effects. From Drop by Drop, p. 8:


Among the cases studies presented was: [a] 31-year-old man ... with panic disorder. Typically, his panic attacks were characterized by predominantly respiratory symptoms, and there were also frequent nocturnal panic attacks. On questioning about traumatic suffocation experiences, the patient recalled having been tortured as a political prisoner at age 18. A wet bag had been placed over his head repeatedly, leading to choking feelings, hyperventilation, and panic. At about age 20 the patient began to experience spontaneous panic attacks. The characteristic reexperiencing, avoidant, and numbing symptoms of PTSD were less prominent. [The authors reported that their ] ...main findings were that 1) there was a significantly higher incidence of traumatic suffocation experiences, both accidental (near-drowning) and deliberate (torture by suffocation), in the patients with panic disorder than in the psychiatric comparison subjects, and 2) within the group of panic disorder patients, those with a history of traumatic suffocation were significantly more likely to exhibit predominantly respiratory symptoms and nocturnal panic attacks.
3.29.2009 1:42pm
second history:
3.29.2009 1:45pm
Oren:

Correct link to 18 USC PART I CHAPTER 113C § 2340 .

I linked it hours ago. Nobody read it. Everyone continued to pretend that the definition of torture in 18USC is not the relevant one. Lather rinse repeat.

Thanks for the effort though.
3.29.2009 1:54pm
Andrew J. Lazarus (mail):
Although it's in Wikipedia, there is reason to think that the quote about crushed testicles that Ejercito provides is a spurious invention of American anti-Communist (Naziphile?) groups.

These threads, though, do provide support for his contention that only the losers commit war crimes.
3.29.2009 2:02pm
second history:
Oren:

Apparently it bears repeating, based on some the pro-torture commenters.
3.29.2009 2:09pm
Cornellian (mail):
While torture gets the guy to tell you what he thinks you want to know, it is not invalid for that reason. There are two more considerations: One is to cross check info, and the other is to ask questions whose information can be checked.

"whose information can be checked" = torture him to see if he'll tell us what we already know.

"cross check info" = torture him and check out what he says, if it turns out to be true, that proves torture works so torture him some more, if it turns out to be false, that means we didn't torture him enough so torture him some more.
3.29.2009 2:10pm
Benjamin Davis (mail):
No victors commit war crimes and some get prosecuted. You can see the cases in WWII of court martial of American and other allied soldiers for things they did to civilians in the war zones. Some were executed for murder and rape. The question that arose was with the quality of those court-martial proceedings which led to the revision that is the 1958 Uniform Code of Military Justice.

I believe that those who are in denial about American torture are doing something similar to what has happened in many countries when a later government comes to terms with a prior governments sponsoring and authorizing of torture (I am including in this cruel, inhuman and degrading treatment). It is predictable and I believe people such as Dairus Rejali in his Torture and Democracy have spoken to this predictability.

Best,
Ben
3.29.2009 2:16pm
d-day (mail):
Readers can be anti-torture, anti-waterboarding, and in total agreement on the moral issues, but that doesn't mean that the posts aren't poorly reasoned and poorly argued. What was the point? He's failed to identify the specific problems with the system other than "they should have known better." Failed to analyze in any meaningful way the role of lawyer as it is generally understood. Even if you're generally favorably inclined to his argument, he doesn't give enough of the reasoning to follow along. He's done nothing here but offer some conclusory platitudes and back-slapping to those who already believe there was intentional misconduct by anyone and everyone in the Bush administration. How was this useful?
3.29.2009 2:25pm
ArthurKirkland:
Given the evidence, the tenacity of advocates on both sides, the lack of remorse among the actors, and the importance of the issues (with risk of recurrence), can there any reasonable resolution that does not involve legal proceedings and adjudications?
3.29.2009 2:27pm
d-day (mail):
SamW:

What are some of you talking about? Yoo was not suppose to be an "advocate." For the benefit of non-lawyers and law students, in this case, Yoo was acting as advisor and it is unethical for legal advice to be misleading just because, that's the way the cleint wants it


Advocate, advisor - the lawyers' role is to provide legal expertise to the client, nor to insert his own personal views and morality. Would it be ethical for a lawyer acting as advisor to give misleading legal advice because the lawyer believes the inquiry or the legal conclusion immoral?
3.29.2009 2:34pm
ArthurKirkland:
Is there anyone who doesn't believe that the professional conduct of the Bush administration's legal team -- ranging from determining the content of memoranda and assignment of particularly legal tasks to preparing invitation lists for meetings was not permeated by "personal views and morality?"
3.29.2009 2:44pm
d-day (mail):
Whose personal views and morality? The president's? Their own? I'm assuming from your tone that you don't think that was ethical for them to have acted in such a fashion. But isn't that the criticism that Painter levels - that administration lawyers SHOULD HAVE allowed personal morality to influence their actions? If that's what you're saying - morality should always influence a lawyers work - then the disagreement here is just whether the administration lawyers had the right morality. And while that's a dispute, I don't see that dispute as something a government ethics lawyer having anything to add. Painter is, I think, trying to identify a process criticism that in the end boils down to "use your personal morality to inform your work product when your moral guideposts are the same as mine."

It's been suggested elsewhere in these comment threads, but is my understanding that when a lawyer has an irreconcilable moral issue in representing a client, the lawyer is to withdraw. Should Bush's lawyers have done that here?
3.29.2009 3:25pm
Occasional Lurker:
Mr Painter,

I appreciate your posts about torture and the ethical role of lawyers advising the executive branch.

I am not particularly pleased to be part of a community of posters who can
-- compare torture to eating broccoli
-- define torture as the causing of permanent harm
-- generally detach legality from justice.

I often advise clients in unclear areas of the law. Whether their intended actions would be legal is essentially unknowable, because there is no case on point -- you make a good guess on all the circumstances.

And that is going to include the morality of the action. I will point out to the client that even if the action is colorably legal because the law is not clear, if the matter were to become public, to be litigated or prosecuted, the moral judgments of many people will figure into what happens.

Some here (misguided, I believe) would see this as my personal morality intruding into some sort of oddly deferential or mechanistic vision of what it means for a lawyer to advise a client.

I see it as using myself as a moral point of reference for how others (judges, juries, opposing counsel) would view the contemplated acts. Given the importance of how people feel and think morally/ethically in making legal judgments, I'd be remiss if I didn't do this to inform my client of the risks and benefits of his or her plans.

And it should go without saying that a good lawyer will do this even if he or she completely agrees that the act would be moral/ethical -- play devil's advocate, run the hypo from other people's perspectives.
3.29.2009 3:56pm
ArthurKirkland:
The ideal would have been for no one occupying a position of authority in our government to have solicited a legal fig leaf for torture. That, I suspect, was the point of Mr. Painter's 'the question should not have been asked' observation.

Any lawyer should have been wise enough to refrain from providing the requested fig leaf. Most lawyers, I hope and believe, would have possessed enough wisdom and integrity to refuse. Even a lawyer whose ideological positions arranged entrance into the Goodling (general) and Addington (issue-specific) legal apparatus of the Bush administration would have benefitted from the self-awareness enabling one to recognize that twisting cherry-picked, extremist, quasi-legal threads into a secret, torture-blessing string for a result-driven client would also manufacture a rope suitable for a hanging.

Those with better moral compasses than the relevant lawyers (and their defenders) would spare them a hanging. But they should be tried, with all evidence (I suspect even more shameful revelations are yet to occur) made available for the citizens in whose name they acted.
3.29.2009 4:00pm
mattski:

I guess there isn't a consensus.

You're right to challenge me as I was expressing a belief and not knowledge. But my claim was about adopting torture as policy which is different than the question of whether an individual instance of torture is ever justified.

And the poll cited above shows the American public 51-44% "rarely or never" outnumbering "often or sometimes."

Maybe I can more authoritatively generalize about Democrats/liberals in suggesting that most of us believe that torture should be unequivocally illegal (the law agrees with us) and that in extremis an individual instance of torture could be argued before a jury on the grounds of necessity. But that is for the facts of the case and the conscience of the jury to decide.
3.29.2009 4:05pm
C. Gittings (mail) (www):
Mattski,

That's exactly right, but notice how the torture advocates never, ever talk about the actual law of necessity. There's a reason for that: probabilities aren't necessities -- necessities are certain.
3.29.2009 4:22pm
Nick056:
A question for torture supporters who raise the (misleading) "costs of not torturing" problem: would you advocate torture if it was conceivable to you that you or someone you know could be picked up, jailed, and tortured?

Further, if it's useful, it's useful. Why not use it more -- especially if its use doesn't cross moral lines? If it passes that test, why not use it on gang members and drug store robbers who know where their violent, potentially murderous partners are hanging out? Should we, in short, make it a standard LEO tactic, to be used advisedly?

And if the answer to that question is "no", and the reasoning involves its morality rather than its utility, why is it moral enough in the context at hand -- that of terrorism?

Essentially, I'm saying that if it's useful and morally acceptable, then it brooks wider use, because terrorists aren't the only awful people out there, and terrorism isn't the only time when the stakes are high. why not torture one thug with a long criminal record to find his murdering fugitive friend? If it's useful?

And if the only reason it doesn't brook wider use is a moral one, then all the people dismissing Mr. Painter's reliance on his sense of morality -- or dismissing his placement of moral judgement at the center of this problem -- are simply deferring the question.

As for the people trying to define torture down, I like Richard Aubrey's implicit stance. These things have names, supported by law and long convention. Use them.
3.29.2009 4:23pm
d-day (mail):
I'm not dismissing Painter's reliance on his sense of morality. He's right to expect people to act on their own morals, whether they be lawyers or elected officials. The problem I'm having is not that morality be the center of the individual actor, but that he seems to place the lawyer at the center of the problem. Maybe it is deferring the question to state that the ultimate moral choice needs to be placed in the hands of the elected official. But I think that's where it should be in our system of government.

Maybe I just know to many lawyers to be altogether comfortable with the idea that the proper role of lawyer is as moral adviser. The contortions in legal, moral, and ethical reasoning throughout all of these comment threads ought to give anyone pause before urging that lawyers be taking a greater role in shaping the moral guidance of the government.
3.29.2009 4:52pm
Soronel Haetir (mail):
Nick056,

The difference I would use is the citizen/non-citizen distinction. We owe a great deal more to citizens than non-citizens no matter how rehrehensible the conduct of either might be.

As an example, I would have no ethical qualms about simply executing non-citizens after a perfunctory trial on any charge. No need to provide a lawyer to the non-citizen, or provide translation services during the hearing or any number of other things required during the trial of a citizen.

Supreme court decisions notwithstanding, I would lay the choice of whether to actually implement such a system at the feet of foreign policy, let the political branches decide whether such a policy is actually advisable.
3.29.2009 7:01pm
PersonFromPorlock:
Out of curiousity, how would commenters here feel about a son or daughter dating a US government, um, 'stress technician'?
3.29.2009 7:24pm
C. Gittings (mail) (www):
Nick056,

I think you're overlooking something: torture has been used extensively since ancient times, and the reason we have laws against it is that our practical experience with institutionalized torture has been overwhelmingly and uniformly negative.
3.29.2009 7:43pm
Richard Aubrey (mail):
Mattski. Yeah, we'll stipulate that it might be both effective and the only effective tool in a certain number of situations. Therefore, there is a price for not using it.
My point is that the opponents of torture be up front about the price. Is it large? Small? Likely? Unlikely? How bad will they feel if somebody has to pay it? (Not at all, but don't admit it.)



And in all my posts on the subject, I have never said whether torture is a good idea or not. Never. But opponents do the usual thing and accuse someone who points out an inconvenient fact of supporting it. Might work in court, but those habits of misleading somnolent juries don't work here. Quit wasting VC's pixels on something so juvenile.

So, man up and tell us about the price.

Consider that society pays a high price, presumably, for the doctrine of letting 99 guilty go so that no one innocent is convicted. Those 99 guilty aren't guilty for nothing. Some will keep on doing bad stuff to the rest of us. But it's a price we're told we must pay. So if you're good with that, you can afford to be good with the price of eschewing torture.
My guess is that the insistence on not doing so is so powerful because you know that there really is a price and you can't afford to admit it.
3.29.2009 9:00pm
Ken Arromdee:
A question for torture supporters who raise the (misleading) "costs of not torturing" problem: would you advocate torture if it was conceivable to you that you or someone you know could be picked up, jailed, and tortured?

I advocate giving people life sentences in prison even though there's a chance that I would (despite being innocent) unjustly get one, and a further chance nobody would know I'm innocent until after I die.

Answering the question means balancing the chance of being unjustly tortured against the chance of a criminal getting free and making me suffer the equivalent of torture. If I think the latter is more likely, then I should support torture even if there's some chance I'd be tortured unjustly. It's certainly a hard question to answer, but it's not immediately obvious that the answer is "never do it".
3.29.2009 9:04pm
Ken Arromdee:
And if the only reason it doesn't brook wider use is a moral one, then all the people dismissing Mr. Painter's reliance on his sense of morality -- or dismissing his placement of moral judgement at the center of this problem -- are simply deferring the question.

That doesn't follow. The reason could have elements both of morality and practicality.

For instance, one possible chain of reasoning is that torture in itself is not wrong, but unnecessary torture is wrong, and widespread use of torture would make it hard to prevent unnecessary torture. Thus, we should have it, but only under restrictions that keep it from becoming widespread.

Another is this reasoning: It's permissible to harm innocent people to catch criminals (otherwise we could never even arrest anyone), but the benefit should be large compared to the harm. Since torture does a great deal of harm, situations where the possible benefit is enough to justify the possible harm to an innocent person are rare. However, while such situations are rare, they do exist.

(Note that this reasoning also applies to prison sentences. When we set up a prison system we know that human imperfection means that some innocent people will be imprisoned, even though we can't point to them. However, the chance of that is low--but not zero!--and the benefit of locking up criminals in jail is high, so we do it.)
3.29.2009 9:18pm
Don Meaker (mail):
The definition of Torture that I believe applies in that in the Geneva Accords, not US Code.

It was my understanding that Title 18 applies to US law enforcement.
3.29.2009 10:13pm
NickM (mail) (www):

Other methods that have, until now, been universally described as torture do not leave physical marks, for example, sleep deprivation, which was a favorite of Soviet Bloc interrogators. You can check Darkness at Noon (fiction) or Menachem Begin's autobiography (presumably, non-fiction) for examples. Forced standing also falls into this category.


No, they have not been previously universally described as torture.

Calling sleep deprivation or forced standing torture makes a mockery of the word.

Nick
3.30.2009 12:56am
Baseballhead (mail):
For a forum of supposed supporters of limited government, the leeway many of these posters are willing to allow the government in secret interrogation rooms is surprisingly unlimited.
3.30.2009 2:51am
jukeboxgrad (mail):
meaker:

It was my understanding that Title 18 applies to US law enforcement.


It is my understanding that you say many things that are flatly wrong ("Torture has a definition. It is treatment that causes permanent harm."), and then refuse to take responsibility, even after this is pointed out (link, link, link, link).

The federal anti-torture statute (part of Title 18) has already been cited multiple times in this thread. It refers explicitly to acts performed "outside the United States." Which should be enough for you to understand that this law is not about "US law enforcement."
3.30.2009 10:30am
Anderson (mail):
Read about how the Nazis rolled up the network that supported Heydrich's assassination. Worked.

If I want to exit a glass door, I can shatter it with a baseball bat. That works, but it doesn't demonstrate that I couldn't have exited the door by turning the handle and pushing it open.

FWIW, I've been reading (yet another) study of Nazi Germany, and it's striking -- and consistent with what experts on torture say -- how often truly innocent people *won't* give false information, even under torture. The guy who burned the Reichstag, the fellow who tried to blow up Hitler in Munich, the man who assassinated von Rath, all were interrogated by a very eager Gestapo, and all stuck to their true accounts of acting alone, not as part of a conspiracy. Of course, denials just make the torturers keep going.

The Luftwaffe's best interrogator never laid a finger on his subjects, just chatted the information out of them.

Calling sleep deprivation or forced standing torture makes a mockery of the word.

Sheer ignorance. Those methods were how the NKVD obtained its confessions for Stalin's show trials. CIA research demonstrated that the pain of prolonged standing and the need for sleep are so great that they will overwhelm a great many victims.

Torture is making people suffer in order to get them to talk.
3.30.2009 10:30am
jukeboxgrad (mail):
nick:

Calling sleep deprivation or forced standing torture makes a mockery of the word.


The Bush State Dept described sleep deprivation as a form of torture. But what they meant, of course, is that it's only torture when other folks do it.
3.30.2009 10:33am
Richard Aubrey (mail):
Anderson.
Precisely. And the effort is designed to elicit information not available in any other way.
Recently read a book about a guy who fought for both the US Army and the Soviets in WW II. He'd been captured a couple of days after D-Day and his successful escape attempt led him to try to go east, where he ran into a Soviet unit and fought with them until wounded.
The Nazis tortured him because they thought, correctly, that he'd had something to do with the resistance before jumping into Normandy on D-Day.
They didn't break him, but they might have. The Allies gained the ground on which the resistance he'd known was working and his info was no longer useful. If they'd kept up, they might have gotten something.
At least, he thinks he was weakening.

Anyway, what price are you willing to publicly say you accept as the cost of eschewing torture?

Keep in mind that most of your audience will think of themselves in one or another terrible situation and believe they'll break. So it's not much of a stretch to think somebody else will break.
3.30.2009 2:31pm
Harris K.:
I appreciate this debate, and especially the professor's thoughtful postings. I am undecided on the morality of this issue. At the risk of being slammed, I must admit that I don't fully understand the logic of the case against torture as a means of pursuing a legitimate end (as opposed to torture as revenge, sadism, or whatever). What I see is mainly blanket claims that torture is "always wrong" based on some feeling the speaker has that torture is too uncivilized or too cruel or too [insert adjective] to use.

Leaving aside the inherent subjectivity here, my problem comes when I compare torture with death. Killing, after all, is an act the state regularly engages in, be it during warfare or through policing or even through capital punishment. It is difficult for me to perceive a reason why we should accept that the state may send armed men to foreign countries to shoot people — hopefully with a reason that justifies the horror of the act — but yet it is beyond the pale to deprive someone of sleep or simulate drowning for the same purpose. In other words, it seems to me that both killing and torture are immoral acts when down for immoral reasons. But just there is not a moral equivalency between a murderer and a policeman killing in defense of the innocent, I would think there exists a distinction between the application of pain by a terrorist or government for sadistic reasons and the carefully controlled application by a government with reasonable expectation the act is necessary to protect others. And of course innocent people may be victims of any application of force by the state, which only argues against indiscriminate application — unless one goes so far as to subscribe to full-blown pacifism.

Moreover, I'm not convinced a "it's just too cruel" standard is enough to create a distinction. Given the choice between being killed or tortured, I suspect most people would choose the latter. (I know I would, as terrible as having to make that choice would be.) So how can we justify saying the option most would choose is not allowed, while the alternative horror is acceptable? After all, torture is to a large extent not just pain or discomfort, it is the *threat* of death. Again, how can we justify allowing the thing but banning the threat?

Of course, none of this impacts the utilitarian debates about whether torture is effective, or the cost to a country's image is too high, etc. Those are important discussions, although I doubt many have the knowledge to answer at least the former question. I possibly could be convinced on one of those fronts. But as much as a sympathize with the sentiment behind "torture is always wrong" claim, I so far haven't been able accept it as reasonable. If the reason behind the action can justify equal horrors, why not this?
3.30.2009 2:59pm
MarkField (mail):

At the risk of being slammed, I must admit that I don't fully understand the logic of the case against torture as a means of pursuing a legitimate end (as opposed to torture as revenge, sadism, or whatever).


Try substituting the words "rape" or "child molestation" in place of torture and I think you'll see the problem with your logic.

Moreover, while you later talk about sleep deprivation and controlled (not simulated, controlled) drowning, there's nothing in your logic which would preclude the rack.


Moreover, I'm not convinced a "it's just too cruel" standard is enough to create a distinction. Given the choice between being killed or tortured, I suspect most people would choose the latter. (I know I would, as terrible as having to make that choice would be.) So how can we justify saying the option most would choose is not allowed, while the alternative horror is acceptable? After all, torture is to a large extent not just pain or discomfort, it is the *threat* of death. Again, how can we justify allowing the thing but banning the threat?


At some point, torture becomes merely a painful prelude to death. To that extent, I think your question answers itself.

Assuming you wouldn't carry the logic quite so far, you're mixing two different circumstances. We recognize death as a potential outcome when combat is under way, just as we do for criminals who rob a bank and try to shoot their way past the cops. We make a distinction, though, between those cases and the entirely different situation in which the culprit has been captured and disarmed so as to pose no threat. Now the question involves how we treat people who are, to us, defenseless. That's a very different moral obligation.
3.30.2009 3:15pm
Andrew J. Lazarus (mail):
How is it that on the internet, people who are apparently smart enough to breathe will make total fools of themselves?

No, they have not been previously universally described as torture.

Calling sleep deprivation or forced standing torture makes a mockery of the word.
Sorry, Nick, but these practices are unquestionably torture. They cause tremendous pain. It isn't the nails that makes crucifixion excruciating, it's the position.
[Menachem Begin]
came across prisoners who signed what they were ordered to sign, only to get what the interrogator promised them. He did not promise them their liberty; he did not promise them food to sate themselves. He promised them -- if they signed -- uninterrupted sleep! And, having signed, there was nothing in the world that could move them to risk again such nights and such days.
If you think Begin was a wimp, then say so.

The KGB and such like prefer methods that don't leave a mark, the better for the show trials. The rack is passé. Before the United States was governed by fools and sadists, we condemned these practices as barbaric torture and totally discounted the "confessions" they produced.
3.30.2009 3:18pm
Anderson (mail):
Anyway, what price are you willing to publicly say you accept as the cost of eschewing torture?

Uh, no, sorry. Torture is *already* illegal. If you are going to argue for legalizing it, then perhaps you should have some evidence on your side.

Yet again, we see the slippage to pretending that the discussion is whether or not torture is a good idea, whereas in fact the Convention Against Torture, and our enacting the Torture Act pursuant thereto, have resolved that question for legal purposes.

And that's what we're asking for -- action by the U.S. government in compliance with the law.

Arguments in which people try to come up with justifiable torture are a bit like arguments for justifiable rape ("well, what if you're the last two people on earth, and she won't agree to propagate the human race?").

And as so often before, Mr. Aubrey appears to think we should model ourselves on the Gestapo. I would think "but it worked for the Gestapo!" (true or not) is an argument that refutes itself.

See the Darius Rejali op-ed:

[Myth No.] 1 Torture worked for the Gestapo.

Actually, no. Even Hitler's notorious secret police got most of their information from public tips, informers and interagency cooperation. That was still more than enough to let the Gestapo decimate anti-Nazi resistance in Austria, Czechoslovakia, Poland, Denmark, Norway, France, Russia and the concentration camps.

Yes, the Gestapo did torture people for intelligence, especially in later years. But this reflected not torture's efficacy but the loss of many seasoned professionals to World War II, increasingly desperate competition for intelligence among Gestapo units and an influx of less disciplined younger members. (Why do serious, tedious police work when you have a uniform and a whip?) It's surprising how unsuccessful the Gestapo's brutal efforts were. They failed to break senior leaders of the French, Danish, Polish and German resistance. I've spent more than a decade collecting all the cases of Gestapo torture "successes" in multiple languages; the number is small and the results pathetic, especially compared with the devastating effects of public cooperation and informers.


For some reason, I find Mr. Rejali's opinion more authoritative than some random Gestapo admirer's on the internet.
3.30.2009 3:35pm
NickM (mail) (www):

The Bush State Dept described sleep deprivation as a form of torture. But what they meant, of course, is that it's only torture when other folks do it.



Bzzzzt. Once again, you use a link to something which doesn't say what you claim it says. Kenya was using FOOD AND sleep deprivation, which is highly dangerous to life.


Sheer ignorance. Those methods were how the NKVD obtained its confessions for Stalin's show trials. CIA research demonstrated that the pain of prolonged standing and the need for sleep are so great that they will overwhelm a great many victims.

Torture is making people suffer in order to get them to talk.


Sheer sophistry. Torture is as it's defined in U.S. domestic law and treaty. You're conflating torture with coercive interrogation practices.

Sleep deprivation is very fatiguing, but it doesn't produce or threaten severe pain or suffering. That's the applicable legal definition (and why waterboarding is different).

It gets people talking. Yes, it produces false positives, especially if you're asking leading questions. In the context of wartime intelligence-gathering, that's not very important. We're not talking about the due process, proof beyond a reasonable doubt standard here - it's not information being gathered to be used in a criminal trial of the detainee; it's information being gathered to attempt to catch other terrorists and disrupt their materials and networks. A lower reliability standard applies - if he gives us 4 sites and 3 of them are empty buildings, but the 4th is a bombmaker's workshop, the intelligence-gathering is successful.


Sorry, Nick, but these practices are unquestionably torture. They cause tremendous pain. It isn't the nails that makes crucifixion excruciating, it's the position.


"Unquestionably" is the new "clearly" - the word used when you can't actually back your point up with reasoned argument. The tremendous ignorance displayed by your comparison to crucifixion makes that apparent. Crucifixion involves the hanging of a person by the wrists, after those wrists have been completely punctured with a large object. It literally tears the wrist apart slowly (as has been shown on X-rays and autopsies of crucified persons).

Sorry Andrew, but the next time you want to insult someone else, you might not want to say something that shows you have no idea what you're talking about.

Nick
3.30.2009 4:51pm
Kirk:
buford, all intelligence gained from interrogation needs confirmation; that's not a characteristic peculiar to information gained through torture.

C. Gittings,
I've been investigating these crimes more than full-time since November 13, 2001 [emphasis added]
Why don't you get a life, and stop derailing the serious conversation here, then?
3.30.2009 4:58pm
Anderson (mail):
Sleep deprivation is very fatiguing, but it doesn't produce or threaten severe pain or suffering.

Says you. People who have undergone it say otherwise.

We're not talking "fatigue" -- we're talking hallucinations, personality disruptions, and the willingness to do or say whatever it takes to be allowed to sleep.

That is a *stupid* way of trying to obtain valid intel, but regardless of the policy question, when it's carried on for 24, 36, 48 hours at a time, repeatedly, it's torture.
3.30.2009 5:09pm
Harris K.:
Thanks for the feedback. My further thoughts:


Try substituting the words "rape" or "child molestation" in place of torture and I think you'll see the problem with your logic.


I don't think so, as it's difficult to imagine a situation where those things would rise above the sadistic bar to serve some higher purpose. And child molestation presumes innocence on the part of the target, as does perhaps rape to a lesser extent. So what you've really just done is named two horrible things that aren't analogous, and then fallen back on the "it's just too cruel" assertion. You completely ignored the comparison with state sanctioned killing. I can see how pacifism is a consistent stand in this regard, but I don't understand this seemingly arbitrary line between torture and killing.

I also think the "defenseless" claim is weak, at least so long as we use weapons such as bombs and missiles that are a) not targeted at someone immediately threatening the attacker, and b) virtually guaranteed to cause collateral innocent damage. We accept that killing of (at least at the moment) defenseless combatants and innocent people because they are regrettable costs of a larger conflict we believe justified. I just don't see how torture is different, other than we have to think more about it because it's more visible.
3.30.2009 5:10pm
Anderson (mail):
We accept that killing of (at least at the moment) defenseless combatants and innocent people because they are regrettable costs of a larger conflict we believe justified. I just don't see how torture is different

In the bombing case, we accept collateral damages in the pursuit of a legitimate target.

Torture doesn't have a legitimate target. It's illegal. It's ineffective. Professional interrogators say there are better ways of getting information.

That is how torture is different.
3.30.2009 5:39pm
jukeboxgrad (mail):
nick:

Once again, you use a link to something which doesn't say what you claim it says. Kenya was using FOOD AND sleep deprivation, which is highly dangerous to life.


The relevant sentence is here:

The forms of torture included: electric shock; confinement to tiny, unlit cells; submersion of the head in water; beatings with hands, sticks, and police batons; suspension from cell doors resulting in loss of consciousness; cigarette burns; and food and sleep deprivation.


You're claiming those last four words are a reference to combined deprivation of both food and sleep, and you're suggesting that if it was sleep deprivation alone, then the Bush State Dept would not have called it torture. You're wrong. If they meant combined deprivation of both food and sleep, they would have said so clearly. They didn't. And other statements indicate that sleep deprivation alone was defined as a form of torture by the Bush State Dept. See here:

Torture continued to remain a problem in PSO prisons, which were not monitored by other government agencies. There were credible reports pointing to a preferred use of nonphysical abuse, such as sleep deprivation, cold water, and threats of sexual assault, as the primary form of torture in PSO prisons.


And here:

The most frequently reported methods of torture included beating, sleep deprivation, extended solitary confinement, and physical suspension.


And you should show proof to back up your "once again."
3.30.2009 5:46pm
NickM (mail) (www):
I've done sleep deprivation. About 55 hours straight is the most I've ever pulled (granted, a lot of caffeine was involved). After about 20-24 hours, you lose alertness and responses to sensory inputs slow. Not long after that, you become highly irritable. By 36 hours, you are thoroughly fatigued, and moving around is uncomfortable. By 40 hours, parts of your brain are already going to sleep - you stop noticing things. By 48 hours, you're largely asleep - you start dreaming in the same fashion you do while you're asleep. About that time, you lose logical thinking, and speech and thought become less coherent. Not long after that, you can start going completely to sleep regardless of what is happening around you.
It's not pleasant, but it doesn't feel like you're going to die, it's not excruciating pain, it leaves no mental or physical damage behind, and it doesn't override the personaliity, unlike drugs.

24 hours of sleep deprivation is torture? Should we wait for hospital administrators and big-firm partners to be sued and prosecuted?

Nick
3.30.2009 6:11pm
Anderson (mail):
I've done sleep deprivation.

Oh god no, not the "it-can't-be-torture-because-I've-done-it-to-myself, -and-there's-no-difference-between-that- and-having-it-done-to-me-involuntarily" argument again.

Nick also does yoga, where he puts himself in stress positions, and gets waterboarded every year at his family 4th of July picnic.
3.30.2009 7:06pm
Andrew J. Lazarus (mail):
Nick, I repeat, you are a fool. Who says the KGB, or the Kenyan Secret Police, or any of the others stop at 55 hours of sleep deprivation? In fact, you are worse than a fool, you are a dangerous hero wannabe who has somehow conflated his paper-writing all-nighter binge with systematic sleep deprivation, to ridicule victims of the latter, and/or make himself feel heroic about the former. Why, when the KGB comes for Nick, he can just pretend it's like exam week at college. Wolverines!

You have ignored repeated citations on this thread that sleep deprivation causes suffering, inspires wholly spurious confessions, and was considered torture until we started doing it.
3.30.2009 7:25pm
MarkField (mail):

I don't think so, as it's difficult to imagine a situation where those things would rise above the sadistic bar to serve some higher purpose. And child molestation presumes innocence on the part of the target, as does perhaps rape to a lesser extent. So what you've really just done is named two horrible things that aren't analogous, and then fallen back on the "it's just too cruel" assertion.


It's not at all difficult to imagine such situations. Suppose we have a suspected terrorist and his children. Should we threaten the children with rape in order to get the father to speak? If he doesn't speak, should we carry out the threat?*

But forget the children for now. Can we rape the suspected terrorist to get him to talk?

As for presuming innocence, yes it does. But torture does the opposite -- it presumes guilt. The very real risk is that we'll torture innocent people (which, of course, is exactly what happens in regimes which torture).

In addition to Anderson's point about bombing, the comparison is irrelevant for purposes of John Yoo. As Anderson also pointed out, torture is illegal under existing law. "Collateral damage", regardless of how awful it might be, is not. Now, you're welcome to argue that the law should be other than it is -- so is John Yoo -- but that's not a defense to what he did.

*There are reports that we in fact did threaten KSM that we would harm his children.
3.30.2009 7:43pm
Jim Miller (mail) (www):
Just for the record: You write: "I also don’t think anybody is interested in listening to Episcopalians argue about sex."

Actually that sounds far more interesting than hearing another lawyer discuss torture, or, more likely, "torture".

I'm not saying lawyers never say anything interesting about the subject -- law professor Glenn Reynolds once said that the war on terror was overlawyered -- but that, having read far too many posts on the subject, I wouldn't bet that the next post would be more interesting than a discussion of Episcopalian arguments about sex.

(The lawyers writing these posts have convinced me of one thing: We have far too many lawyers, especially in the war on terror.)
3.30.2009 8:24pm
Greg Q (mail) (www):
Finally, I did not take sides in any of my posts in the dispute currently afflicting the Episcopal Church. I did say that there are more important matters – such as the torture issue discussed in Bishop Griswold’s letter to John McCain -- than the personal life of the Bishop of New Hampshire.

When you denigrate one side's position in the argument (as you do every time you claim it's just an argument about "the personal life of the Bishop of New Hampshire"), you are implicitly taking the side of the Bishop of New Hampshire. You're a bright guy, so you know that. Why are you pretending otherwise?
3.31.2009 1:54am
Greg Q (mail) (www):
It's just wrong.

You are right. The problem is that it's your position that "is just wrong".

It is just wrong to sit back and let terrorists injure, torture, cripple, and murder innocent civilians. (If you don't believe it's torture to have a nail rammed into your eye, testicle, or other body part, by a nail bomb, you need to chat with someone who's had it done to them.)

We know, despite the Post's attempted whitewash, that rigorous questioning of terrorists has brought us information that we've used to prevent terrorist attacks.

Terrorists are outlaws. Which is to say, they are outside of the law. So long as they chose to remain there, the only immoral questioning technique is the one that fails to get every possible useful bit of information out of our terrorist captives.

You want to develop drugs that will let our interrogators drain them dry? Great. But until we get those drugs, it is better to crush a thousand al Qaeda testicles, than to have one American soldier, or one innocent civilian, be injured or killed by terrorists. They chose to be terrorists. The consequences are their problem, not ours.
3.31.2009 2:13am
Greg Q (mail) (www):
BTW: I'm not a member of the Episcopal Church, and couldn't care less what you do with consenting adults (while you're out of the sight of children).

But I care very deeply about honest debate, and loathe people who try to "win" a debate by lying about the terms. That's what you're doing here, and so long as you continue doing it, I will continue calling you on it.

If a contingent of pro-adultery Episcopalians wanted the Church to stop teaching that adultery was wrong, and managed to get a man who had both a wife and a mistress promoted to Bishop, and this led to a potential schism in the Church, would you describe the argument as being merely about the private life of that bishop?

Because that is the level of dishonesty you are showing.
3.31.2009 2:50am
Greg Q (mail) (www):
Oh, BTW, if you truly think that the argument within the Episcopal Church is an unimportant distraction from important issues, there's a simple way to show that:

come down firmly on the side of the doctrinal conservatives. If it's not a big issue, then undoing the changes that caused a split is clearly the right thing to do.

If you'd rather have a split, and have people arguing over that "unimportant" issue, rather than give the other side their way, and then focusing on the "important" issue, well, that tells us how important you really think the issue is.
3.31.2009 3:31am
Anderson (mail):
We know, despite the Post's attempted whitewash, that rigorous questioning of terrorists has brought us information that we've used to prevent terrorist attacks.

We "know" this how? Was your boldfacing supposed to make up for a paucity of evidence? Faith-based torture, is it?

The only claims we've heard have been general and vague, from people who are at the most risk of being defendants in a war crimes trial (Tenet, etc.).

Supposedly it's, what, 5 years since anyone was tortured in the black sites? And there's nothing we gleaned that can be declassified now?

What efforts were made to practice normal, proven interrogation methods on KSM et al., before we turned to torture?
3.31.2009 7:56am
jukeboxgrad (mail):
greg:

We know, despite the Post's attempted whitewash, that rigorous questioning of terrorists has brought us information that we've used to prevent terrorist attacks.


The article you cite as proof is packed with baloney. For example, it says this:

…Zubaydah … provided information that helped … [capture] KSM. KSM then provided information that led to the capture of … Zubair … Zubair then provided information that led to the capture of … Hambali — KSM's partner in developing a plot to hijack passenger planes and fly them into the tallest building on the West Coast: the Library Tower in Los Angeles. Told of Hambali's capture, KSM identified Hambali's brother … Hambali's brother then gave us information that led us to a cell of JI operatives that were going to carry out the West Coast plot.


Did you follow all that? Zubaydah helped us capture KSM, and then KSM helped us derail the Library Tower plot. Small problem: according to Bush himself, that plot "was derailed in early 2002." And KSM wasn't captured until 2003.

This obviously proves that torture is so effective it allows us to achieve time travel.

The NR writer you cite (Thiessen) makes a long series of claims that are backed by no sources whatsoever. Not even anonymous sources. He seems to be making it up as he goes along. And the fairy tale he presents is contradicted by known facts.

Let us know if you can show us a reliable source for the claims he makes. Or for the claim you made.
3.31.2009 8:14am
Anderson (mail):
Ah, I missed the cite, but JBG shows it's not terribly persuasive.

Torture supporters seem to have a hard time with the facts. In these Painter threads, we heard how Yoo actually had a "long discussion" of Youngstown, which turned out on inspection to be a single cherry-picked quote (from Frankfurter's op -- I've always been a little surprised they even got FF on the majority). We hear how effective torture was for the Gestapo, despite a study that shows it wasn't. We hear how sleep deprivation isn't a form of torture, despite strong evidence to the contrary. We hear how KSM was captured a year before he actually was.

Torture is used mainly for the self-esteem of the torturer (and his superiors).

"The larger problem here, I think," one active CIA officer observed in 2005, "is that this kind of stuff just makes people feel better, even if it doesn't work."
3.31.2009 9:15am
Andrew J. Lazarus (mail):
The Washington Post has decided waterboarding is torture, but when done by Khmer Rouge. AFAIK, they have yet to take a strong stand when it has been authorized by Bush and Cheney.
4.1.2009 12:19pm
Karl Lembke (mail) (www):
I think ultimately, the definition of torture has to be an exercise in line-drawing. I've seen one attempt to create bright-line definition: A fellow over on Live Journal offered the definition of "Any physical or mental coercion -- any." When I pointed out this definition covers such things as a police officer pulling over a motorist, prison wardens keeping prisoners locked up, or even parents putting their kids on a "time out", I was ignored. As far as this person is concerned, because I don't take his word as gospel, I "support torture".

Any definition of torture is either going to draw arbitrary lines, or is vague enough to force others to draw arbitrary lines.

The definition in 18USC, for example, features such items as:

"...intended to inflict severe physical or mental pain or suffering...
"...prolonged mental harm..."
"...procedures calculated to disrupt profoundly the senses or the personality;"
"...the threat of imminent death;"

Someone has to define "severe", "prolongued", "profoundly", and "imminent".

It seems to me, at least one of the "torture memos" was an attempt to do exactly that. What lines exist which soldiers, police, interrogators, etc. must not cross?
4.1.2009 10:11pm
Karl Lembke (mail) (www):
Nick056:
A question for torture supporters who raise the (misleading) "costs of not torturing" problem: would you advocate torture if it was conceivable to you that you or someone you know could be picked up, jailed, and tortured?


Some other questions that strike me as worth asking:

To those who support the death penalty -- would you advocate executions if it was conceivable to you that you or someone you know could be picked up, jailed, and executed?

To those who support life in prison without parole -- would you advocate LWOP if it was conceivable to you that you or someone you know could be picked up, jailed, and kept there for the rest of his or her life?

To those who support imprisonment...
To those who support fines...

It seems to me our society stands ready to do things to people in order to punish and discourage bad behavior. Is that fact that you or I would not want to be subjected to these things sufficient justification for eliminating them?
4.1.2009 10:38pm
jukeboxgrad (mail):
karl:

Any definition of torture is either going to draw arbitrary lines, or is vague enough to force others to draw arbitrary lines.


You're ignoring the fact that we already have a judicial history (pdf) which tells us where the line is.

A pretty good indication that something is torture is if our own government has called it torture when someone else did it. For example (as I have mentioned) the Bush administration defined sleep deprivation as a form of torture. But only when other countries do it.

Someone has to define "severe", "prolongued", "profoundly", and "imminent".


Yoo's own definition does not transcend the problem you describe. His own definition, like every other definition, is based on words that someone needs to "define." Let's look at his definition (pdf):

to constitute torture "severe pain" must rise to … the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.


What is a "serious impairment of body functions?" Someone has to define "serious." If I twist my ankle, and then for some reason it never heals properly, and then I have a permanent limp, and I can no longer run, isn't that "serious impairment of body functions?" Does that mean that pain at the level of a twisted ankle should be defined as torture? What if I develop a bunion that causes a permanent limp? Is that a form of torture?

And what does it mean to impose the level of pain "ordinarily" associated with "death, organ failure, or serious impairment of body functions," unless one is actually causing "death, organ failure, or serious impairment of body functions?" If one is not causing "death, organ failure, or serious impairment of body functions," then how is it possible to know that one is nevertheless causing the same level of pain that "would ordinarily be associated with" those things?

Yoo doesn't plainly say that 'torture isn't torture unless it causes death, organ failure, or serious impairment of body functions.' He added a couple of levels of abstraction (like "the level that would" and "sufficiently serious that it would"). But what do those abstractions actually mean, in practice? Here's what I think: nothing.

And it's possible to cause death while causing no pain (by administering certain drugs, for example). It's also possible to cause "serious impairment of body functions" while causing no pain. If I play in a loud rock band for many years, I will probably experience hearing loss. Isn't that a "serious impairment of body functions?" Yet I will also probably report no pain. How are these realities reconciled with his definition? Is Yoo really trying to tell us that torture entails a level of pain that consists of no pain at all?

You're claiming that Yoo was just innocently attempting to write a clear definition. Then why is his definition so unclear? Yoo's allegedly clear definition is gibberish, because it's possible to cause "death, organ failure, or serious impairment of body functions" without imposing pain. It's also possible to impose extreme pain without causing "death, organ failure, or serious impairment of body functions."

at least one of the "torture memos" was an attempt to do exactly that


The important thing about Yoo's memo is not that it drew the line more clearly than it had been drawn before (it didn't). What's important about Yoo's memo is that it attempted to draw the line in a new place. In particular, it seemed designed to permit waterboarding, even though we already had a long judicial history of defining waterboarding as a form of torture.
4.2.2009 8:23am

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