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"Holy Hell" in Torture Memo Fight:

It appears the Obama Administration remains divided over whether to release additional OLC "torture memos." Attorney General Eric Holder wants to release the memos, but high-level intelligence officials, including John Brennan and Leon Panetta, are opposed. Michael Isikoff reports:

the White House last month had accepted a recommendation from Attorney General Eric Holder to declassify and publicly release three 2005 memos that graphically describe harsh interrogation techniques approved for the CIA to use against Al Qaeda suspects. But after the story, U.S. intelligence officials, led by senior national-security aide John Brennan, mounted an intense campaign to get the decision reversed, according to a senior administration official familiar with the debate. "Holy hell has broken loose over this," said the official, who asked not to be identified because of political sensitivities. . . .

The continued internal debate explains the Justice Department's decision late Thursday to ask a federal judge for another two-week delay (until April 16) to file a final response in a Freedom of Information Act lawsuit by the American Civil Liberties Union seeking the release of the memos. The ACLU agreed to the two-week delay only after Justice officials represented that "high-level Government officials will consider for possible release" the three 2005 memos as well as another Aug. 1, 2002, memo on torture, that has long been sought by congressional committees and members of Congress, according to a motion filed by Justice lawyers with U.S. Judge Alvin K. Hellerstein in New York, who is overseeing the case.

The 2002 memo, written by former Justice lawyers Jay Bybee and John Yoo, concluded that waterboarding and other harsh interrogation techniques could be used against Qaeda suspects without violating a federal law that prohibits torture. That memo was publicly withdrawn by the Justice Department in 2004 after its existence became publicly known and sparked a public controversy. But a new set of Justice lawyers—led by Steven Bradbury, the newly installed chief of the department's Office of Legal Counsel—later secretly authored additional memos in the spring of 2005 that essentially approved the same techniques, permitting the agency to barrage terror suspects with a combination of physical and psychological tactics, including head-slapping and frigid temperatures, according to a 2007 New York Times account. Those memos concluded that the harsh interrogation techniques used by the CIA would not violate Geneva Conventions restrictions on "cruel, inhuman and degrading" treatment of prisoners.

Oren:
The whole idea of a secret legal memo still baffles me. Does a waterboarded detainee really gain much from knowing that his captors decided they have authority to torture him derived from inherent article II powers as opposed to being authorized to do so by the AUMF? Would it matter to him whether the treatment is permissible under the Geneva Conventions or whether it was decided that they don't apply to him in the first instance?

The usual argument for government secrecy is that release of the information compromises our ability to prosecute policy. What's the argument in this instance?
4.4.2009 12:37pm
CDU (mail) (www):
According to the article, the memos describe the interrogation techniques. The CIA probably doesn't care about the release of the legal arguments. However, they have always resisted the disclosure of specific interrogation techniques, as that would allow terrorists to train to resist them.
4.4.2009 12:51pm
Oren:

However, they have always resisted the disclosure of specific interrogation techniques, as that would allow terrorists to train to resist them.

Our techniques must be really ineffective if they can be so easily circumvented.
4.4.2009 1:13pm
lesser ajax:
I would imagine that this situation is indicative of problems Obama is having with many elements of the government. Obama ran on a pledge to undo the bad works of the W. years. Obama is now tasked with leading many of the employees who implemented the bad works of the W. years. Repudiating the works without alienating the employees is a tall order.
4.4.2009 1:20pm
Andrew J. Lazarus (mail):
However, they have always resisted the disclosure of specific interrogation techniques, as that would allow terrorists to train to resist them.
Hunh? By growing gills??

I can think of another reason they don't want the interrogation techniques known; the persons responsible might like to take a European vacation someday without worrying that half their round-trip ticket would go to waste.
4.4.2009 1:33pm
Constantin:
Andrew, contrary to your fevered fantasy, if some EU country ever detained Bush or Cheney, Obama would initiate armed action to retrieve them before the sun went down.

Why? Because he's already overseen the killing of a bunch of innocent kids in Pakistan, and will be roughing up terrorists around the world if he hasn't already. And he'll probably want to be taking some European vacations in four or eight years, too.

The dream is over. Let it go.
4.4.2009 1:57pm
Ralphe (mail) (www):
I think CDU called this one: "According to the article, the memos describe the interrogation techniques. The CIA probably doesn't care about the release of the legal arguments. However, they have always resisted the disclosure of specific interrogation techniques, as that would allow terrorists to train to resist them."

Sure there are some procedures that you cannot train for, but in many others the element of surprise would elicit a response. If I could resist legal questioning of that type knowing in advance what to expect I think it reasonable for the government to release legal reasoning but omit the means.

To make a stronger point I think it would be foolish and harm our country to do otherwise.
4.4.2009 2:06pm
ArthurKirkland:
I might be more sympathetic to the intelligence community's position regarding disclosure of memoranda had dozens of recordings depicting "enhanced interrogation techniques" not been destroyed by a CIA official. That type of discovery abuse should have consequences.
4.4.2009 2:07pm
A Law Dawg:
<blockquote>The CIA probably doesn't care about the release of the legal arguments. However, they have always resisted the disclosure of specific interrogation techniques, as that would allow terrorists to train to resist them.</blockquote>

I think they learned the ultimate lesson of Abu Ghraib: bad things happen when people find out what you are really doing.
4.4.2009 2:17pm
/:
I think they learned the ultimate lesson of Abu Ghraib: bad things happen when people find out what you are really doing.


Let's pray nobody figures out that bankrupting the government uses destabilizing effects to run toward totalitarianism.

...

Amen.
4.4.2009 2:37pm
AB (mail):
These creeps need to remember they work for the civilian government, and they are under the law. This is a good time to teach them that lesson. Again.
4.4.2009 2:46pm
Anderson (mail):
These creeps need to remember they work for the civilian government, and they are under the law

My thoughts exactly.

I don't think the curriculum of the SERE program was classified, and it seems to've leaked if it was. The "training" bit is a pathetic excuse for a cover-up.

If we have to clear out CIA and start from scratch, that might be an improvement. But of course, it's not the whole agency -- it's the D.O., historically the most arrogant and least effective part of our intel establishment.

If exposing these memos and the acts taken in "reliance" on them has the result of scaring CIA into never again acting on a secret legal opinion ... well, cry me a river. That would be a salutary result.
4.4.2009 3:40pm
Anderson (mail):
(And if these memos aren't released, I start looking for a new Democrat -- or moderate Republican, if the GOP starts coming to its senses -- for president in 2012. Hopefully I won't be the only one doing so.)
4.4.2009 3:42pm
CDU (mail) (www):

Our techniques must be really ineffective if they can be so easily circumvented.

The biggest fear is always the unknown. Any technique will be more effective if the person being interrogated doesn't know what's going on.
4.4.2009 5:30pm
einhverfr (mail) (www):
I don't know what the big deal is. Waterboarding is only torture in our eyes when our enemies do it.

Really, it is just a military baptism when you get right down to it....
4.4.2009 7:57pm
My Middle Name Is Ralph:

According to the article, the memos describe the interrogation techniques. The CIA probably doesn't care about the release of the legal arguments. However, they have always resisted the disclosure of specific interrogation techniques, as that would allow terrorists to train to resist them.


What difference does this make if we have now concluded those techniques are torture and therefore illegal?
4.4.2009 8:02pm
Benjamin Davis (mail):
The memos can not stand the light of day and strengthen the case in the Spanish criminal investigation for prosecution. That's why CIA are fighting because once those are out, it is patently obvious that crimes were committed by high-level civilians. The truth commission sidetrack will fizzle as the road to prosecution will accelerate - internationally certainly and force the hand of Obama for a special prosecutor on the domestic side. That is why there is such pushback.
Best,
Ben
4.4.2009 10:27pm
Constantin:
And Ben Davis will travel to Bush's eventual trial via his unicorn.
4.4.2009 10:51pm
Anderson (mail):
That's why CIA are fighting because once those are out, it is patently obvious that crimes were committed by high-level civilians.

Agreed. The last bit of deniability will peel away, as the question arises, "so, these were authorized -- which of 'em did you do?"

The truth commission sidetrack will fizzle as the road to prosecution will accelerate - internationally certainly and force the hand of Obama for a special prosecutor on the domestic side.

I wish. Obama's hands seem to be pretty force-resistant thus far.
4.4.2009 11:27pm
Dreadnaught (www):
Remember, President Obama will still allow "harsh interrogations" through a classified loophole.
4.4.2009 11:42pm
Scott Snyder (mail):
Hey, Waterboard away. If it gets us the info to protect our people at home or abroad then go for it. They would do no less to us. Check this humane way to real with the detainees. www.strategicbookpublishing.com/TheGH4Effect.html
4.5.2009 12:07am
Dr. Weevil (mail) (www):
einhverfr's link (7:57pm) and Andrew Lazarus' sneer about "growing gills" (1:33pm) are either shamefully ignorant or deeply dishonest. What the Japanese did in World War 2 is not what the U.S. did to three al Qaeda prisoners. Those who write with any evidence of actual knowledge of the latter agree that no water enters the prisoner's mouth or nose, that it is indeed a mere simulation of drowning, rather than the partial drowning that einhverfr's link assures us it is.

That both may be called 'waterboarding' is irrelevant. The camps where Japanese-Americans were imprisoned during World War 2 may properly be called 'concentration camps', since they were used to concentrate people for easy guarding. But that does not make FDR a war criminal as guilty as Hitler, because Hitler's 'concentration camps' were quite different: in his case, the phrase is a euphemism for extermination camp.

If some U.S. soldiers undergo 'waterboarding' as part of their training, does not that imply that knowing what is involved can help one endure it?
4.5.2009 12:22am
einhverfr (mail) (www):
Dr Weevil:

Please provide sources, that they may be properly vetted.
4.5.2009 12:25am
ArthurKirkland:
Hey, how many innocents could be waterboarding (nobody's perfect) to "protect our people" before it might offend your sense of morality and proportion, Mr. Snyder?
4.5.2009 12:30am
Ricardo (mail):
If some U.S. soldiers undergo 'waterboarding' as part of their training, does not that imply that knowing what is involved can help one endure it?

Waterboarding is not "simulated drowning." It is partial suffocation. You cannot breathe while being waterboarded and it is only due to the mercy of your interrogator that you may be allowed to take a breath at some point. That's the whole point. Otherwise, it wouldn't be any more frightening than scuba diving.

Given this, it certainly makes a difference that those doing the waterboarding are fellow members of the United States armed forces who will have to answer very difficult questions if you die under their watch. If you are in enemy hands, you have no idea what's going to happen next. Even despite this, waterboarding is reportedly very difficult even for SERE school enrollees to endure.
4.5.2009 12:46am
Andrew J. Lazarus (mail):
Dr Weevil is mostly correct in distinguishing our waterboarding from WW II, I believe. The Japanese used a slightly different partial-drowning technique. We use the same apparatus as the Khmer Rouge. I fail to see why this is an improvement, though, and his statements about what our waterboarding does are ridiculous and false. (The people whose word he takes as gospel have tremendous incentive to lie and are contradicted by any number of other sources.)

Snyder's remark reminds me how similar many VC conservative(!) commenters are to what Germans would be writing now, had they won. "Gas chambers—if it kept us safe from Judeobolshevism, what's the problem."

Meanwhile, Constantin tells us that the arrest of American war criminals in Europe is a fantasy, but then treats us to his hallucination of an American attack on Western European NATO allies should my fantasy come to pass. Empty belligerence is out now; time to wake up.
4.5.2009 2:11am
Ricardo (mail):
Meanwhile, Constantin tells us that the arrest of American war criminals in Europe is a fantasy, but then treats us to his hallucination of an American attack on Western European NATO allies should my fantasy come to pass. Empty belligerence is out now; time to wake up.

According to Christopher Hitchens (who, to be fair, loathes the man), Henry Kissinger always consults a lawyer before traveling outside the United States. I wouldn't be surprised if John Yoo were to do the same -- does anyone know if he has traveled outside the country since leaving his OLC post?

And no, I sincerely doubt any of these Chuck Norris fantasies would come to pass if Mr. Yoo or any other Bush Administration official was detained for questioning in Europe. There would probably be a negative official response and a lot of quiet diplomacy for sure, but a military response? Please. When push comes to shove, the U.S. and most European countries have too much to lose by severely pissing off one another.
4.5.2009 7:20am
davod (mail):
"I would imagine that this situation is indicative of problems Obama is having with many elements of the government. Obama ran on a pledge to undo the bad works of the W. years. Obama is now tasked with leading many of the employees who implemented the bad works of the W. years. Repudiating the works without alienating the employees is a tall order."

He also ran on a pledge of more open government with no lobyists in government, no earmarks, and time for public comments on legislation. How is that going?

Change.
4.5.2009 7:56am
davod (mail):
"I don't think the curriculum of the SERE program was classified, and it seems to've leaked if it was. The "training" bit is a pathetic excuse for a cover-up."

What is this babes-in-the wood comment time.

SERE training should have been classified because if the ratbags knew what we were training our guys to expect, the rabags might think up something else.
4.5.2009 8:02am
Oren:
Why is it impossible to have a policy debate without attempting to criminalize the opposition or call them traitors? Sheesh.
4.5.2009 3:53pm
einhverfr (mail) (www):
Oren:

Time to upgrade Godwin's law, I think.

Of course, I voted for Obama because although I figured the only change he would bring to Washington would be the spare change of lobbyists, I was afraid McCain would be even more ungrounded in conservative methodologies.
4.5.2009 4:39pm
Dr. Weevil (mail) (www):
Since einhverfr is too lazy to do his own homework, here are a couple of links to get him started:

ABC News defines waterboarding: "The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."

Why the cellophane? To keep the water out of the prisoner's mouth and nose. My understanding from reading comments on blogs that einhverfr would no doubt reject as right-wing is that the prisoner can breathe, knows that he can breathe, but can't help feeling that he is drowning because of the tilted position and the water falling on the cellophane laid across his face (obviously not too tightly, or he would be suffocating and there would be no need for water).

Even the four former JAGs who think waterboarding is indubitably torture and therefore illegal clearly imply that no water enters the lungs: they define waterboarding as "the use of a wet towel and dripping water to induce the misperception of drowning". If water is actually poured into your mouth or nose, you will have an accurate perception of drowning, not a "misperception". To put it another way, a wet towel and dripping water is a long way from holding someone's head under water, which doesn't need an inclined board, either. (Why they say "wet towel" where ABC says cellophane I do not know. Again, precise details are classified.)

So which is more likely? That the CIA has found a method to make terrorists feel as if they are drowning without endangering their lives in any way or doing any permanent physical damage -- a method they are naturally reluctant to give the details of, since that would make it easier for terrorists to prepare for and resist it? Or that even the (very few) knowledgeable opponents of the practice are simply lying about what is involved?

As for einhverfr's link, it just assumes that water must enter the prisoner's lungs, because otherwise the method would supposedly not work: "The media usually characterize the practice as 'simulated drowning.' That's incorrect. To be effective, waterboarding is usually real drowning that simulates death." In other words, Evan Wallach (like Ricardo here) does not actually know what the CIA did to Khalid Sheikh Mohammed and two others, he just assumes that if it worked it must have involved semi-drowning: a remarkably flimsy argument.

On a different subject, lesser ajax's comment (4/4, 1:20pm) is arguable. He writes: "Obama ran on a pledge to undo the bad works of the W. years. Obama is now tasked with leading many of the employees who implemented the bad works of the W. years. Repudiating the works without alienating the employees is a tall order." A different hypothesis seems more likely to me: that what Bush did in many areas was in fact the least bad of various unpalatable alternatives, so coming up with plausible alternatives is not nearly as easy as he and his supporters thought it would be.

The swinish Andrew J. Lazarus apparently hasn't noticed that opponents of waterboarding also "have tremendous incentive to lie" if they want to look like anything other than bigots and fools when they compare Bush to Hitler or Pol Pot, and that anyone can be "contradicted by any number of other sources" if those sources feel free to make stuff up or pass on things they've read somewhere that flatter their prejudices. Any scholar knows that sources must be weighed, not counted, since the sheer number of sources is irrelevant.
4.5.2009 6:48pm
Dr. Weevil (mail) (www):
P.S. The link for the former JAG letter is here.
4.5.2009 6:49pm
Anderson (mail):
Dr. Weevil: Try putting cellophane "over your face" and then breathing.

The swinish Andrew J. Lazarus

And hey, don't be in any hurry to remove the cellophane, either. We would miss you terribly.
4.5.2009 8:13pm
Oren:

is that the prisoner can breathe, knows that he can breathe, but can't help feeling that he is drowning because of the tilted position and the water falling on the cellophane laid across his face

So, when I come up with a virtual reality interface to the brain that makes it so you can't help feeling that your testicles are burned with a hot iron, even though your testicles are not burned with a hot iron and you know that your testicles are not being burned with a hot iron.

Torture is defined entirely by the subjective experience, not by reference to (any) objective injury. That is the law codified by 18USC113, by the CAT and indeed by every other source that I am aware of.
4.5.2009 8:24pm
Oren:
BTW, I accept as true for the purposes of this argument all the factual statements you've made about waterboarding. Just to give you benefit of the doubt (and since I don't think the argument hinges on factual disagreements).
4.5.2009 8:26pm
Dr. Weevil (mail) (www):
Try reading the whole comment before replying, Anderson, particularly the part beginning "obviously not too tightly". Then you can either come back here and apologize or just go on wallowing in your own swinishness.
4.5.2009 8:27pm
Dr. Weevil (mail) (www):
Oren:
So if one of the Guantanamo prisoners suffers feelings of intense panic when he is being interrogated by a woman, or a Jew, or someone he thinks is a Jew, or a woman he thinks is Jewish, continue to use such an interrogator constitutes torture? Can that be right? I wonder whether it would even be legal to take someone off an interrogation crew for being the wrong gender or ethnicity. Wouldn't that violate Federal anti-discrimination laws?

I also wonder how any method of interrogation can pass the "subjective experience" test. Surely any method that would make the prisoner even slightly more likely to talk is one that a knowledgeable prisoner would object to on the grounds that it was, in his entirely subjective opinion, torture. Do you really want to give terrorists the right to veto any interrogation method they think likely to be effective?

Finally, I am not arguing that waterboarding as applied to Khalid Sheikh Mohammed and two others is not torture: it's a difficult question, one none of us can answer without knowing precisely what it involves. I am objecting to those who seem to feel entitled to make stuff up about it.
4.5.2009 8:38pm
Andrew J. Lazarus (mail):
Dr. Weeviltroll, I continue to be at a loss what you are proving even if we were to agree that waterboarding causes suffocation or asphyxiation, and not drowning. Although Christopher Hitchens, who arranged to be waterboarded as an experiment, seems to think drowning is the correct term.
You may have read by now the official lie about this treatment, which is that it "simulates" the feeling of drowning. This is not the case. You feel that you are drowning because you are drowning—or, rather, being drowned, albeit slowly and under controlled conditions and at the mercy (or otherwise) of those who are applying the pressure. The "board" is the instrument, not the method. You are not being boarded. You are being watered. This was very rapidly brought home to me when, on top of the hood, which still admitted a few flashes of random and worrying strobe light to my vision, three layers of enveloping towel were added. In this pregnant darkness, head downward, I waited for a while until I abruptly felt a slow cascade of water going up my nose. Determined to resist if only for the honor of my navy ancestors who had so often been in peril on the sea, I held my breath for a while and then had to exhale and—as you might expect—inhale in turn. The inhalation brought the damp cloths tight against my nostrils, as if a huge, wet paw had been suddenly and annihilatingly clamped over my face. Unable to determine whether I was breathing in or out, and flooded more with sheer panic than with mere water, I triggered the pre-arranged signal and felt the unbelievable relief of being pulled upright and having the soaking and stifling layers pulled off me. I find I don't want to tell you how little time I lasted.
You'll note, of course, that the release Hitch signed made clear that waterboarding could cause permanent psychological and physical damage, including death.

In any case, someone who, like you, endorses Pol Pot's interrogation techniques should not be calling others "swinish".
4.6.2009 12:56am
Dr. Weevil (mail) (www):
Andrew J. Lazarus is simply lying, starting from the second word of his comment. I've been blogging under the same name for 7+ years, and commenting for around 10: that makes me a blogger, however repulsive my opinions, not a troll.

He pretends that I am claiming that waterboarding "causes suffocation or asphyxiation, and not drowning". That is again a lie. My understanding -- which may of course be incorrect, since the details are classified -- is that it involves none of the three, that the prisoner can breathe freely and knows it, but that the position and the water that is falling on his face (but cannot get into his nose or mouth because of a barrier in between) makes him feel as if he cannot. I have already said so quite explicitly. Why does Andrew J. Lazarus feel entitled to lie about what I wrote? Is he some kind of . . . . troll?

I do not in fact "endorse Pol Pot's torture techniques". Andrew J. Lazarus assumes as self-evident that what the CIA did to Khalid Sheik Mohammed was exactly the same as what some guys did to Christopher Hitchens as a publicity stunt. That seems unlikely. The Hitchens crew is simply guessing as to what CIA waterboarding involves, and they and Hitchens had a strong incentive to make it more terrifying and dangerous rather than less. If the actual CIA crew had applied their actual methods to Hitchens, we could learn a lot from his experience. But they didn't, and we can't.

Someone who lies about the opinions of others is quite properly described as "swinish". I stand by the description.
4.6.2009 10:12am
Oren:


So if one of the Guantanamo prisoners suffers feelings of intense panic when he is being interrogated by a woman, or a Jew, or someone he thinks is a Jew, or a woman he thinks is Jewish, continue to use such an interrogator constitutes torture? Can that be right?

No, for two reasons:

(1) 18USC113 does not define "intense panic" as torture. It requires "severe physical or mental pain".

(2) The subjective test is evaluated with respect to a hypothetical reasonable person -- would the interrogation cause a reasonable person to experience severe physical or mental pain.

(3) It's clear that being interrogated by a female/jew would not cause a reasonable person any physical or mental pain (let alone the modifier severe).

(4) Waterboarding, on the other hand, has been shown to cause severe physical and mental pain when applied to reasonable people, such as Mr Hitchens and the various graduates of SERS that have testified about it.
4.6.2009 10:25am
Andrew J. Lazarus (mail):
No, Troll Weevil, they are not guessing. Remember, one of the arguments that waterboarding can't be torture is that we use it in our own SERE course—and Hitch arranged to be waterboarded by SERE alumni.

When you have been the subject of a similar experiment, you can report back that really, you were able to breathe just fine. If that happens to be true, which I would bet against big if you would take the other side. So bring a video.

It really doesn't matter how many years you have been blogging as a defense to trolling. How long has Michael Savage Weiner been on the radio? My guess is that you like to say something outrageous more than any sort of accurate or factually faithful discussion.
4.6.2009 10:45am
einhverfr (mail) (www):
Mock-executions are well established to be torture. Even Dr. Weevil's description seems to unquestionably count as torture.

18USC2340 clearly defines THREATS of imminent death, even if false, as torture and thus illegal. I would expect that sleep deprivation, alteration of sense of time, etc. would be more of a grey area under 18USC2340(2)(B).

BTW, one of my favorite depictions of torture in the media primarily because it is both subtle and evil in that portrayal is the episode "Intersections in Real Time" (Babylon 5, fourth season). The torture there combines a combination of mild/non-lethal poisoning, sleep deprivation, occasional infliction of physical pain, and the simulated electrocution of two individuals (neither one is subjected to any electric current), all in pursuit of a confession. The episode immerses the viewer in the reality of the torture from the perspective of the victim. Really, really, great episode.
4.6.2009 11:53am
Oren:

I would expect that sleep deprivation, alteration of sense of time, etc. would be more of a grey area under 18USC2340(2)(B).

It's hard for me to think that such conduct really causes severe mental pain. Certainly it's cruel under the GC standard but IMO it doesn't meet the 18USC115.
4.6.2009 12:11pm
einhverfr (mail) (www):
Oren:

18USC2340(2)(B) includes in a definition of "severe mental pain or suffering" the following subparagraph:


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;


My sense is that sleep deprivation and alteration of sense of time would be a grey area which might not ALWAYS be torture, but might in some cases rise to the level of torture.
4.6.2009 12:42pm
Oren:
Accepted for the time being, only due to my ignorance of the actual mental effects of bright lights &loud music on the senses and personality.
4.6.2009 1:24pm
My Middle Name Is Ralph:

Dr. Weevil writes: Why the cellophane? To keep the water out of the prisoner's mouth and nose. My understanding from reading comments on blogs that einhverfr would no doubt reject as right-wing is that the prisoner can breathe, knows that he can breathe, but can't help feeling that he is drowning because of the tilted position and the water falling on the cellophane laid across his face (obviously not too tightly, or he would be suffocating and there would be no need for water).


I have to say, this strikes me as complete BS. If I can breath and know I can breath as you describe it, I do not see how there could be any feeling of drowning and this method seems singularly ineffective. OTOH, I can certainly see how suffocating someone by wrapping cellophane over his nose and mouth and then pouring water over the nose and mouth would be sufficiently terrifying to make someone talk. While suffocating is certainly bad enough, pouring water over the nose and mouth at the same time would seem to add an extra dimension of terror to the practice.
4.6.2009 4:19pm
Earnest Iconoclast (mail) (www):
Apparently, I'm okay with interrogation techniques that are legally considered torture. But then I don't accept legal definitions as being "truth" just because they are legal definitions. Ripping out fingernails, inflicting burns, electrocution, drilling through hands, etc... are torture. Sleep deprivation, uncomfortable positions, and fake scary scenarios are not the same thing. They are fundamentally different. The fact that they are lumped together makes it hard to have a meaningful discussion about interrogation. Reading through the various definitions of torture I've seen, interrogations would have to consist of politely inquiring as to whether a prisoner was hungry to be definitely legal.

All of the legalistic gymnastics and semantic debates are obscuring the fact that sometimes bad people need to be interrogated to get important information out of them and sometimes they won't willingly cooperate. There are effective and ineffective means to do so and they range widely in severity. Calling anything unpleasant "torture" and denouncing it is certainly a position, but it seems to me to be an unreasonable position. I would love to see a serious debate on what works and what doesn't work and how far we are willing to go rather than endless debates on whether or not bad music at high volume causes "mental pain" or not.
4.6.2009 6:10pm
einhverfr (mail) (www):
Earnest Iconoclast:

Calling anything unpleasant "torture" and denouncing it is certainly a position, but it seems to me to be an unreasonable position.


I am not seeing anyone saying that. The current legal definition of torture seems to include a number of very specific things:

1) Threats of severe harm or death
2) Infliction of intense physical pain
3) Techniques and chemicals designed to disrupt the personality.
4) Holding someone else hostage and threatening to apply any of the above to them.

All sorts of things can be physically uncomfortable which don't rise to the above categories. Things like sleep deprivation might or might not depending on how it would be applied. Same with sitting in uncomfortable positions. The question is whether it is intended to disrupt the personality, invoke a threat of death or serious injury, etc.
4.6.2009 6:21pm
Andrew J. Lazarus (mail):
I remain bewildered that the pro-torture crowd continues to believe sleep deprivation is not a form of torture, in the teeth of evidence that it was one of Stalin's favorite methods of torture exactly because it left no marks. Undamaged show trial defendants' confessions are much more persuasive than babble from someone scarred all over from brutal interrogation. Stress positions have been known to cause permanent muscle damage, even above the pain caused in the moment—again, without leaving embarrassing visible evidence.

Where do people get this theory that it can't be torture if it doesn't leave a mess?
4.6.2009 8:04pm
Dr. Weevil (mail) (www):
Andrew J. Lazarus writes: "My guess is that you like to say something outrageous more than any sort of accurate or factually faithful discussion." There's no need to guess. Anyone can read any of the 1000 or so items I've blogged over the last 7+ years, or the hundreds of comments I've left just on this website, to see whether I write like a common troll. That is why I mentioned my blog. If Andrew J. Lazarus wants to refute my point, he needs to come up with examples of trolls with websites, or show that I argue like a troll, or devise some sort of rational agrument, instead of telling us about some jerk on the radio that I've barely heard of and have never listened to. Dragging him in is precisely the sort of thing a common troll does.

Whether the 'waterboarding' used in SERE training is the same as what the CIA did to Khalid Sheikh Mohammed is main the question, one that Andrew J. Lazarus and Christopher Hitchens could not possibly know the answer to. Again, I have read specific claims that the latter does not involve any obstruction of breathing. I obviously cannot prove that those claims are true, but no one has shown that they are false, and some of the details that have leaked out make more sense with my interpretation. After all, if you're going to stop someone from breathing at all until he tells you what you want to know, why use towels or cellophane or a tilted board or anything like that? Holding his head in the toilet until he gives up will work just as well. On the other hand, convincing someone's body that he can't breathe when his brain knows that he can is obviously going to be a rather complex process, requiring some equipment. If the CIA has figured out how to do that, I really don't think the details should be publicized, and I do think that whether it would constitute torture is arguable.

Finally, Andrew J. Lazarus' (and Anderon's) wish that I undergo what he considers to be torture is an interesting clue to his character. I see no reason to revise my one-word characterization: swinish.
4.6.2009 8:10pm
Dr. Weevil (mail) (www):
I am offended (but not bewildered) that Andrew J. Lazarus continues to act as if the amount of sleep deprivation is not absolutely crucial in determining whether it constitutes torture. Of course, keeping someone awake for (e.g.) a week, as Stalin's men did, is torture. But keeping someone awake who would prefer to be asleep for (e.g.) 10 minutes is certainly not torture, otherwise I could go to jail for insisting that one of my students lift his head up off his desk and do his share of the classwork. Just how many hours of sleep deprivation can be inflicted without passing the line into torture is a good question, which it would take competent medical knowledge to answer. Andrew J. Lazarus' professed bewilderment that anyone could "believe sleep deprivation is not a form of torture" is, as usual, either ignorant or disingenuous. He acts as if any amount of sleep deprivation is torture, and that cannot be true.
4.6.2009 8:20pm
einhverfr (mail) (www):

On the other hand, convincing someone's body that he can't breathe when his brain knows that he can is obviously going to be a rather complex process, requiring some equipment.


I would think that would constitute a threat of imminent death, wouldn't you think?
4.6.2009 11:15pm
Dr. Weevil (mail) (www):
I think it's a difficult question, and depends crucially on how the process works and what it feels like, which none of us here actually knows. In other words, it's arguable either way, whereas holding someone's head underwater or otherwise blocking his airways while telling him you won't let him breathe again until he does whatever it is you want him to do is indubitably a threat of imminent death.
4.6.2009 11:31pm
Andrew J. Lazarus (mail):
Dr. Weevil continues his quest to minimize waterboarding!
I think it's a difficult question, and depends crucially on how the process works and what it feels like, which none of us here actually knows.
Except, of course, for the statements of our own Special Forces, and Christopher Hitchens above.

From today's paper, we find the Red Cross report on the insertion of medical professionals into the process.
Red Cross investigators concluded that medical professionals working for the C.I.A. monitored prisoners undergoing waterboarding, apparently to make sure they did not drown.
If waterboarding isn't partial drowning, why did the CIA need someone to make sure the victims didn't drown? Duh!

Dr. Weevil doesn't mind my pointing out his endorsement of Pol Pot's investigative techniques, but when you suggest he is a troll in it for the reaction, wow, that really burns him up!
4.7.2009 1:28pm
Oren:

But then I don't accept legal definitions as being "truth" just because they are legal definitions.

Then aren't truth, they are the meaning of the word for the purposes of the statute. The statue limits what interrogations can be done. Seems rather straightforward -- Congress would like to define precisely what it is forbidding.

I have to second Dr. Weevil's (despite my strong disagreement with his basic tenets) call for some basic civility. Policy disagreements are not personal. A also agree with him that waterboarding is, in fact, simulated drowning not actual drowning. Of course, that's all that matters to me, since the definition (severe mental or physical pain) is plainly meant to be subjective. What else could "pain" mean except the subject experience in the brain?

Of course, as I pointed out earlier, subjective does not mean "anything the detainee says" but is a reasonable-person standard (the objectively-reasonably-person's-subjective-experience, to put it inelegantly).
4.7.2009 3:06pm
Dr. Weevil (mail) (www):
Andrew J. Lazarus continues to write bald-faced lies. No honest and intelligent person could read what I have written as an "endorsement of Pol Pot's investigative techniques". I do very much mind his asserting that, though his swinish trolleries no longer surprise me.

As for his latest argument, it is worthless. Note the weasel word "apparently" in his second quotation, then follow the link and read the context. The only evidence that the CIA is doing anything that could cause the death by drowning or suffocation of the interrogated prisoners is (a) the New York Times reporter's inability to imagine any other reason why interrogators might want a doctor on hand while they work, and (b) the testimony of 14 al Qaeda terrorists. Both points are at best astonishingly naive.

(a) Surely any interrogation of someone suspected of having committed horrendous crimes and intending to commit more is going to be stressful, no matter how gently conducted. Would not the CIA be wise to have a doctor on hand to keep an eye on sudden blood-pressure spikes and other unhealthy medical conditions likely to afflict someone who was (e.g.) asked about the details of an upcoming operation he thought we didn't know about?

(b) I haven't bothered to try to confirm this, but many blogs have plausibly reported that there are al Qaeda instruction manuals on the web for anyone who knows where to look and can read the languages, and that these manuals recommend that captured terrorists always claim to have been tortured, because such claims cannot be refuted and will win the sympathy of the gullible. Andrew J. Lazarus writes of the CIA (4/5, 2:11am) "The people whose word he [meaning me] takes as gospel have tremendous incentive to lie and are contradicted by any number of other sources". Apparently it hasn't occurred to him or the New York Times to apply the same qualification to the words of captured al Qaeda. In short, he is willing to believe the testimony of the most brutish terrorists, but cannot give the benefit of the doubt to his fellow Americans who are trying to stop them. Such a double standard is disgusting, without being in the least surprising.
4.7.2009 6:06pm
einhverfr (mail) (www):
Dr Weevil:

It seems to me that the threat of imminent death would include processes where the object is to cause sensations similar to those of imminent death. By your own admission, this is what you understand the CIA's use of waterboarding to be. Wouldn't that make it legally torture?
4.7.2009 6:48pm

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