Take Action: Tell Obama to Prosecute Bush's Torturers

Under pressure from the ACLU, the Obama administration has finally released a set of four Bush-era memos from the White House Office of Legal Counsel. Written by assistant attorney general Jay Bybee and acting assistant attorney general Steven Bradbury, these memos detailed the torture techniques which the Bush administration believed could be used on captured terrorists and terror suspects.

These techniques included “walling” (slamming a prisoner into a wall by swinging them from a collar around their neck), enforced nudity and cold water dousing, shackling in stress positions, sleep deprivation (not to be used “for more than eleven days at a time”), and locking detainees in “confinement boxes” that weren’t large enough to stand up in. Worst of all, the memos argue for the permissibility of waterboarding, a well-known torture method used by the Spanish Inquisition, by Nazi Germany, by the Khmer Rouge, and by the Pinochet regime in Chile. That’s the kind of company America has been keeping, these past few years.

As an American citizen, when I read these memos, I feel my blood boiling in anger. This was done in our names – sweeping up people from foreign battlefields, imprisoning them for years on end without charges or trial, and eventually releasing them only on condition that they never speak about what was done to them. Worst of all is this – the clinical, lawyerly detachment in these memos, approving torture methods reviled by the civilized world while seeking to bury their evil under dispassionate language. As Andrew Sullivan notes, some of them explicitly adopt the tactics of totalitarianism – tactics that even these memos admit are condemned by the State Department when used by foreign dictatorships, tactics straight out of our darkest dystopias. Here’s from Bybee’s memo:

“You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him.”

And from George Orwell’s novel 1984:

“‘The worst thing in the world,’ said O’Brien, ‘varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal.’”

President Obama has already issued an executive order banning the future use of these techniques and requiring interrogations to comply with the Army Field Manual, and that’s a major step forward, but it doesn’t go far enough. Torturing prisoners isn’t just unethical or a bad idea: in the United States, it is a federal crime. Those who tortured, and those who ordered torture, committed criminal acts, and it’s not good enough to say that there will be no future violations. Justice demands that those who broke the law be held to account; that is the only way to restore our moral standing and make a clean break with the lawless past of the Bush administration.

This moral necessity makes it all the more disappointing that President Obama, upon releasing these memos, also promised that those who followed the advice in them would not be prosecuted. However, short of issuing a presidential pardon, he doesn’t truly have the power to make that promise. The ultimate decision lies with Attorney General Eric Holder, whom we know was an advocate for disclosing these OLC memos, and who can appoint a special prosecutor to look into this. We need to apply pressure on him to do the right thing. Firedoglake and the ACLU both have petitions to this end; I’ve signed them and I strongly urge my American readers to do likewise. If other courses of action come to my attention, I’ll update this post.

The major unanswered question, to my mind, is why the Obama administration has so tenaciously resisted the idea of holding Bush’s torturers accountable for their crimes. I don’t believe they genuinely agree with the doctrines advanced in these memos; if that were so, they would not have released them, or would have done so only with extensive redaction. But if they believed that these actions were unequivocally illegal, they could have started prosecutions already without being pressured to do so.

The explanation that seems most plausible to me is they fear that, if they were to commence prosecutions, it would ignite a bitter partisan battle that would consume the country’s attention and sidetrack the rest of President Obama’s policy agenda. But if that’s their reasoning, I’m still disappointed. First of all, the die-hard remnants of the Republican party are already bitterly opposed to the Obama administration and are, as Rush Limbaugh famously advocated, doing everything they can to make sure he fails. Less than 100 days into the Obama presidency, conservative politicians – not just garden-variety right-wing crazies, but actual elected officials – are talking openly about secession, rebellion, and revolution. The Republican party is a movement wholly in thrall to its most extreme and deranged elements, and they will never cease their effort to obstruct and destroy Obama and the Democrats by any means available. There is nothing to be gained by trying to appease them.

But even more importantly: Even if prosecutions would be controversial, so what? Is serving justice merely one more political goal to be weighed against others? Is lawbreaking to be ignored when punishing it would be inconvenient?

America was created as a nation of laws, not of men. If we allow the well-connected or the politically powerful to violate the law with impunity, that founding guarantee will be rendered null and void. We must uphold justice, whatever the consequences. Nothing else is more important. Now that we know what was done in our name, we must show the world that we will not let it go unpunished. Even more so than with the President or the Attorney General, the decision and the responsibility rests with us, the people. We must speak out, loud and clear, to demand that justice be done.

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • Leum

    Amnesty International has a letter-writing campaign. And they make it really easy to send (except that one of my Senators will only accept e-mail’s through his webpage’s comment form, but he’s a newbie and on our side so I forgive him).

  • http://infophilia.blogspot.com Infophile

    One theory I have for why Obama is reluctant to act is fear of retribution once the balance of power shifts back. The Republicans tried to impeach Clinton when all he’d done was lie about having sex. If they have the will to try Obama, they’ll find an excuse.

  • RJC

    Absolutely not. These people were acting under orders, with the go ahead of the commander-in-cheif, in writing. If anyone should be prosecuted for torture, it should be the ones who created the documents in question, not the soldiers and officers who abided by them. Greg Laden spelled it out more clearly than I can in this post.

  • Alex Weaver

    Absolutely not. These people were acting under orders, with the go ahead of the commander-in-cheif, in writing.

    The Nuremberg Court didn’t buy it; why should we?

  • Lux Aeterna

    These guys were just doing the dirty job that no one wanted to do. I believe most of them genuinely thought that they were helping to improve the safety of ordinary Americans like you. Now that the documents have been released, it is all too easy to sit on our high pedestal and take the self-righteous road of persecuting this individuals. Even if torture is wrong, it is too harsh to go to the extent of persecuting them.

    Sometimes evil has to be countered with evil.

  • http://www.blacksunjournal.com BlackSun

    NO!!! A thousand times no!!! Obama has limited political capital, and a ferociously negative GOP attack squad following his every move.

    His priorities are, in this order: Implement greenhouse gas regs. Switch over the U.S. to sustainable energy. Balance the budget. Restore America’s credibility with expert diplomacy. Reform health care. Reform the tax code. Et cetera.

    Backward looking prosecutions would be a complete waste of time and cripple his presidency. If you wanted something relevant, prosecute the people behind the financial mess. That might actually do some good. And the GOP would have to cooperate.

    The torture prosecutions would be gratuitous self-righteous revenge. And I say this as someone who abhors torture and is indignant that we ever stooped so low. But this is a non-starter. It’s political suicide in the name of ideological purity.

    The only people who should be prosecuted would be Bush and Cheney. And they carry a certain immunity as ex-president and ex-vice-president. Remember, we pardoned Nixon.

  • Dennis N

    Blacksun, I beleive prosecuting torturers would be a good move to accomplish the goal to, as you say, “restore America’s credibility”. We lost much of that when we began acting like big jerk bullies who ignore the Geneva Convention,

  • Dennis N

    That is to say, ‘believe’.

  • Alex Weaver

    So let the command to prosecute come from the bottom up. Let him wash his hands of it if that’s what it takes to deflect the right-wing smear machine.

  • http://dominicself.co.uk Dominic Self

    I agree with BlackSun entirely. Obama represents a tremendously rare opportunity at a time when the right is (temporarily) weakened. If he makes the most of it then you will end up with a better country led by better people who are less likely to torture in the future. And that’s a far better prize than prosecutions for torture in the past – particularly prosecutions of people who didn’t make the rules in the first place.

  • vgtr

    As an european, I think that prosecuting the people responsible for the torture (and yes, that definitely includes the soldiers!) would greatly help the US to regain some of its lost moral ground, increase your credibility in the international community and thus help diplomatic relations. Of course, not only the soldiers would have to be prosecuted, but the people who gave the orders as well, or it would just be seen as using the “pawns” as scapegoats

  • Demonhype

    Sorry, I agree with Alex Weaver on this one. We’ve prosecuted other people who were just doing the dirty job and believed it was for the best. It’s pretty two-faced to expect those on the other side to take some brave but foolhardy stand against direct orders and prosecute them for their failure to do so, but coddle the minions on our own side as “just following orders”.

    BTW, the word is prosecute, not persecute–when you’re guilty of such an atrocity as torture, it’s not persecution to demand accountability from everyone involved. I mean, I’m not fond of the military myself, and in its defense everyone always hastens to tell me how the military is totally not what I think and you totally dont’ have to obey unethical orders–and then when something like this happens, everyone rushes to protect them with the “just following orders” excuse. So, is the miltary have an ethical core or not? Are you actually allowed to refuse unethical orders or not? Because from people’s behavior, I’m thinking that one of thse claims is complete crap. Because you either have the right to make ethical decisions or not, and if you do then you should be held responsible for your decision to uphold an unethical order. If not, then stop insisting to me that the military is a totally ethical organization that totally doesn’t control people as if they were just weapons attached to a brain stem.

    And if “just following orders” is a valid excuse, then I don’t want to hear another word about Nazis, Soviets, or any other such war criminals. Or should I say “war criminals”, since the uneven application of that term would render it ultimately meaningless–at least, for what it’s meant to describe.

    Don’t whine that I don’t have a right to criticize unless I enlist either. That’s as much BS as when a Christian insists you don’t have a right to criticize Christianity unless you have a doctorate in every relevant field, and even some irrelevant ones. When I see people (or clear evidence of people)following clearly unethical orders (esp. when I’m told that they have a choice by so many military-fans), commiting the kind of atrocities I’ve always been told are only ever committed by that much-demonized “other side” (be they Nazis or Muslims), and then have it insisted to me that they are all incredible heroes and shouldn’t be judged for their actions as we always judge even the smallest order-follower on the “other side” (though, and I obviously can’t stress this enough, our guys have a choice whether or not to follow unethical orders), I don’t need to have enlisted to have seen and heard enough to be disgusted by the hypocrisy. Just as I’m sure no one here has to have a doctorate in theology, Koine Greek, Ancient Hebrew, etc. to figure out that there are different translations of the bible, but they all involve hideous atrocity with a big Jesus-shaped smiley-face slapped on.

    So, do they have an ethical choice or not? This is the point always being pushed on me when I express disapproval of the military, but when it his the fan we fall back on the following orders thing. Like when the recruitment officer told some of the HS kids that the sergeants “can’t yell at you anymore”. I went home, told my dad, and we both laughed for a long time over that. They’ll tell you anything right up until the enlistment papers go through, won’t they?

    I guess what I’m saying is I’m tired of the inconsistent descriptions coupled with the hypocritical justifications. If the military just produces walking weapons with no right to choose, then just admit that’s what they do. Be honest and quit pussyfooting around the subject. If that’s not the case, then there should be no problem with someone being prosecuted for choosing to obey an inhumanly evil order. It’s no different than we do with the opposing side, or even with people who do what their boss tells them to do when they know full well it’s wrong.

    I mean, we’re not talking soldiers in the heat of battle here. We’re talking about cold-blooded deliberate torture of the sort we so deplore in historical tyrants, BTK-style serial killers, and fictional supervillains/mad scientists. I’m never going to be fond of the average soldier, but I’m not going to endorse prosecuting him/her or refusing the benefits that were promised to him/her (provided we don’t prosecute the average soldier on the other side either, and that includes civilian “combatants” in the case of an invasion such as ours). But this is an entirely different situation, and I find it terrifying that anyone would pull out the “following orders” excuse, even if there is no official right to refuse unethical orders. Official mandates don’t actually have any control over your own sense of right and wrong.

    I have come to believe that these official ethical rights soldiers supposedly have are without any bite, and are there only to create the illusion that the military respects the individuals and their ethical choices. Either that, or they don’t even exist and are nothing but an urban legend of some kind. If neither is the case, then no one would be justifying anything based on following orders.

    I wouldn’t push the faith-based initiative thing just yet, but this is a much more serious matter. I would love to see not only Obama but the 69-70% of American citizens who aren’t still insane to take a stand and show not only the increasingly-dangerous minority fascist element but the whole world that the majority of Americans do not tolerate torture under any circumstances. No excuses.

    And ya know what? If the majority of the military population would take the same stand, I just might have to considerably adjust my opinion of the military, or at least of those who choose to join it. Just as I could feel more sympathy for wounded veterans if we could own up to all the wounded soldiers and civilians on the other side. One of the reasons for my low opinion of the military is the unwillingness to admit when our country has made a mistake–or in this case, a deliberate wrong. You weren’t a hero, you were a murder weapon–in some cases, broken during the crime. If they could admit to that instead of insisting that they saved the whole world like Superman, if they could come to terms with the essential wrongness, and if they could use that experience to teach younger people to think critically before rushing to war, I could not only sympathize with them, I could honor them.

    And before you ask, no I do not think that removing Saddam was reason enough. Yes, he was a monster, but from what I understand his significant crimes were committed with our blessing and our financing, and as for the rest–well, compared to most of the theocrats in the region, he was a pussycat. Not someone I’d choose to live under, but at least under him I understand women had rights to work, own property, attend school, and such. If I had to choose an arab country, I could do a lot worse. It was a start, and that’s how progress works. No one marched into the western countries and said “okay, the Vatican’s through here, we’re going to employ human rights and give women equality and abolish slavery, etc”. If anyone had, there would have been one hell of a fight.

    We went in there thinking we had some magic-bullet answer, in our infinitely impatient American way. (Take over Iraq and the people will roll out the red carpets! Kill Saddam and democracy will kick in and the people will vote our way! Much like an old friend of mine who believed that outlawing racism would make it go away magically). We screwed up big time and we don’t want to admit it.

    And now I’ll sit back and wait for the explosion of hysterical screaming to start, as it always does when I display my failure to give our troops the unconditional justification I’m told they deserve–no matter what they do, apparently. And much like your garden-variety fundementalist, I’m sure all the relevant points will be ignored and opinions will be attributed to me that I didn’t even express. *sigh* I’d like to expect a little more from humanity, just once.

  • Demonhype

    vtgr–my point exactly, or at least one of them.

    Dominic Self–I see the political point, but not the ethical one. If the fact that they didn’t make the rules or give the orders is an excuse for them, it’s an excuse for everyone including the Nazis (sorry to invoke Godwins’ law, though I believe the reference is warranted here). If it would really strengthen our side and weaken the Repubs further, I might have to approve for the sake of the future atrocities those bastards will commit should they ever hold power again. But I’d like to think the American people have a stronger sense of right and wrong than that.

    Come on, the Repubs had impeachment proceedings on Clinton for lying about nookie! How can we just dismiss the vast atrocities they’ve committed as if they meant nothing, and how can we possibly expect our allies, such as vtgr, to trust our claims to strong ethical values if we pretend that all this was just a little unfortunate misunderstanding?

    If prosecuting a blatant and nauseating war crime like this is really a serious political risk, then my country may be farther down the crapper than I dared to believe.

  • http://www.atheistrev.com vjack
  • http://www.patheos.com/blogs/daylightatheism Ebonmuse

    BlackSun, I think you make the case for Obama’s deferring prosecution as clearly and persuasively as I’ve seen it made anywhere. I agree that he has many other extraordinarily important things to do, and we can’t permit this issue, however important it is, to derail the entire rest of his agenda. That said, I don’t think that’s a tradeoff we need to make.

    As you yourself said, there’s a right-wing attack squad already following his every move. It’s not as if he’s going to get them to cooperate with his policy agenda by agreeing not to prosecute, so he has little to lose by pressing ahead. And, in fact, a clear majority of Americans support action of some kind, either a criminal investigation by a special prosecutor or the appointment of an independent panel like the one Pat Leahy proposed. Only one-third of Americans are against him doing anything about torture, and most of those are clearly members of the same die-hard conservative minority that opposes him on every other issue as well. It’s that minority that’s overrepresented in the media and Beltway elites, which makes it seem as if investigating torture would be a far more divisive issue than it would be in reality.

    I also want to correct one error in Demonhype’s comment: As far as I know, most of the people who tortured were CIA agents. That’s a civilian organization, not a military one. If anything, however, this makes them more culpable, since it means they had more leeway to refuse orders or to resign.

  • valhar2000

    Less than 100 days into the Obama presidency, conservative politicians – not just garden-variety right-wing crazies, but actual elected officials – are talking openly about secession, rebellion, and revolution.

    Why is this a problem? I’d say it is a golden opportunity to get rid of the most regressive element of american society. And before you get all indignant onme, realize that separating the population along already existing political and geographic lines would be beneficial to both of them.

    Right now we have conservatives, mostly in the South, who are getting liberalism imposed on them, who are being forced to refrain from engaging in teaching and religion practices that everyone supports, and being forced to support with their tax dollars governmental social policies that they abhor.

    On the other hand, liberals, mostly in the North, have had conservatism imposed on them, being forced to compromise on fundamentals issues of liberty and justice, having separtion between church and state eroded, education alduterate3d for religious ends, and have had to support with their tax dollars an expensive and unjust war.

    If these two groups were allowed to separate, each one of them could freely impose their prefered policies on themselves without intervention from the other group. Granted, conservatives in the North would get a raw deal, as would liberals in the South, but right now an even greater number of people are getting a raw deal.

    The two resulting nations would not even need to be enemies; they could maintain coridal diplomatic relations and continue to trade and exchange knowledge and expertise as desired by their citizens.

    I’ll admit that I happen to beleive that letting conservatives put their policies into effect in their own country would result in social, political and economic regression on an enormous scale, but they themselves believe the exact opposite, so why not allow them to try that experiment on themselves?

  • Alex, FCD

    Valhar, as I recall that little experiment didn’t go terribly well last time.

  • Stephen

    @Blacksun

    NO!!! A thousand times no!!! … Backward looking prosecutions would be a complete waste of time

    I disagree utterly; indeed I think that this is an appalling and shameful view. The “let’s not look back” approach could well be appropriate for a young shoplifter or for someone who is a bit late renewing a residence permit. But for government-sponsored torture? How on earth can you expect citizens to respect the rule of law if the government turns a blind eye to the most appalling abuse?

    After the Bush regime America is, morally speaking, in Chapter 11. If no attempt is made to prosecute torturers it renders America morally bankrupt.

  • Chris Mifflin

    I can’t believe not one person here has questioned whether or not torture was actually committed. Earlier someone noted the difference between prosecution and persecution, a true distinction. I was also like to point out the difference between torture and torment. When we think of torture, we think of a wide variety of actions. The rack, burning, cutting, and myriad other techniques come to ones imagination when the word is used. The point here is, actual torture leaves permanent physical or mental disability. Nowhere has any evidence surfaced that the “torturous” actions resulted in any permanent physical or mental harm. Even the fundamentalist fascist islamists that claim they were tortured don’t claim that much. Rather, not unlike many here, they simply assert that what they experienced was torture. All the while, they remain unapologetic for their mass murders.
    This is actually a better starting point because we must not forget who we are being accused of “torturing?” It was written,
    “As an American citizen, when I read these memos, I feel my blood boiling in anger. This was done in our names – sweeping up people from foreign battlefields, imprisoning them for years on end without charges or trial, and eventually releasing them only on condition that they never speak about what was done to them. Worst of all is this – the clinical, lawyerly detachment in these memos, approving torture methods reviled by the civilized world while seeking to bury their evil under dispassion.”
    First I want to know what’s so wrong with sweeping someone off of the battlefield who is trying to kill you? Are you seriously arguing that their detention alone is unjustifiable? Don’t we imprison people for trying to kill innocents? Second, their indefinite detainment not problematic either. No one denies that these individuals are dangerous. No one denies that they will kill every American without hesitation or remorse. I’m not arguing that we should be able to do anything we want from these people, all I want to establish here is that no one should deny that many of the prisoners in the war on terror and ALL of the individual on which enhanced interrogation techniques were used are guilty of crimes that an American citizen guilty of the same crimes would be eligible for life imprisonment or the death penalty. Now, add the fact that there is no end to hostilities in this war and this more than justified the detention of all prisoner determined to be combatants. Many Americans like John McCain served indefinite periods as POWs waiting for the end of the Vietnam war, WWI, and WWII. Releasing them, unless they are non-combatants, is not an option. A large number of detainees released from GITMO have been killed or recaptured later on the battlefield. When they get out and get home they benefit from their enhanced reputation, having duped the Americans.
    But yet I deny that the Bush administration tortured people and the very memos you refer to as proof of that fact, I can also point to as proof that NO TORTURE occurred. First, the memos make it clear that the enhanced techniques were not used on a wholesale basis; these techniques were not used indiscriminately. Enhanced interrogation techniques were used only on higher value targets, only after all other interrogation techniques either failed or stopped producing intelligence, and DID NOT PRODUCE PERMANENT HARM. It is a verifiable fact that these techniques also resulted in the capture of KSM and others, as well a alerting authorities to terrorist plots in the works in the US and UK which were subsequently averted. So excuse me if an obscure 1984 quote doesn’t convince me that putting a nonpoisonous catapiller in the cell of a mass murder to avoid more mass murders is torture. This is the guy the beheaded Daniel Pearl, right? Well, I’m not going to lose any sleep over his losing sleep. In fact, we all sleep better because of enhanced interrogation techniques.
    The problem here is everyone one is conflating the issue to two options, torture or no torture, and then define torture so broadly that the word ceases to hold any meaning. Putting what the Bush administration ordered on par with the actions during the inquisition, Soviet rule, Chinese rule, or any really torturous societies isn’t just askew, it is flat out wrong. It is an insult to everyone who has ever been indiscriminately and unmercifully tortured by totalitarian dictators.
    Ronald Dworkin has a great discussion on on torture in his book Why Terrorism Works. The whole book is great but this chapter is particularly relevant. I mention this because Dworkin (extremely liberal) takes a surprising stance in favor of legalized torture with judicial review. There is also a good philosophical treatment of the ticking bomb scenario.
    I think it is important to also note that I don’t deny that some of the enhanced interrogation techniques could be considered torture in application. A little deprivation of sleep or food can confuse a suspect into giving up vital information, but too much deprivation could result in long term harm. An aspirin can fix a headache, but a whole bottle kills. To the extent that anyone went beyond the proscriptions set, I would agree that we ought to prosecute them. However, since no such evidence exists, it is not only unfair, but a petty punishment for 8 years of hard feelings about Bush v. Gore. Just because the Democrats would have done it differently doesn’t make it a crime. This all stinks of partisanship to me.
    One final note. In fact, prosecution might be ex post facto and , therefore, unconstitutional. Just because what was done is revolting to you, doesn’t make it illegal. All war is revolting to Quackers, but we don’t build our foreign policy on emotions. We build on logic and evidence. Making something illegal now but prosecuting someone for something that is now illegal, but was legal at the time the act was committed is by definition persecution, not prosecution.

  • KShep

    I’m thinking we may want to wait a little bit before we go after Obama for this. I found this at The Plum Line, via DailyKos:

    This point has been made in dribs and drabs already, but it really needs to be driven home: In his statement yesterday, Obama didn’t really rule out any and all prosecution of officials involved in the torture programs.

    That’s the claim being made by the lead lawyer for the ACLU — which brought the case resulting in the release of the torture memos — and he makes a good point.

    “We shouldn’t over-read President Obama’s statement”, the ACLU lawyer, Jameel Jaffer, said in an interview with me a few moments ago.

    The key line in Obama’s statement from yesterday is this: “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

    Obama singled out those who carried out duties “in good faith.” But Obama said nothing about what might happen to any interrogators who may have gone beyond what the torture memos condoned. His statement is also silent on those who created the torture program, Jaffer points out.

    More here:

    http://theplumline.whorunsgov.com/torture/claim-obama-didnt-really-rule-out-prosecution-of-torture-officials/

    And here is the DailyKos link with all the comments:

    http://www.dailykos.com/storyonly/2009/4/18/721437/-Did-He-Or-Didnt-He

    Mind you, I’m not endorsing either way of looking at this yet—-maybe this writer is just parsing words, but you never know.

    I just don’t know what to think yet, so I’m going to give it some time to pan out.

  • Alex, FCD

    The point here is, actual torture leaves permanent physical or mental disability.

    The United Nations Convention Against Torture, which the United States signed and ratified, pretty much calls bullshit on that:

    [Torture is defined as] any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a male or female person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

  • Alex, FCD

    Oh, and furthermore:

    Putting what the Bush administration ordered on par with the actions during the inquisition, Soviet rule, Chinese rule, or any really torturous societies isn’t just askew, it is flat out wrong.

    Not when these are exactly the same actions.

    Just because the Democrats would have done it differently doesn’t make it a crime.

    No, the fact that it’s against the law makes it a crime.

    In fact, prosecution might be ex post facto and , therefore, unconstitutional.

    Nice try, but the United States ratified the United Nations Convention against torture on the 21st of October, 1994, which was, I’m sure you’ll recall, some six years before Bush took office. It was illegal the whole time.

  • Leum

    valhar2000, succession would have a terrible impact. First of all, the red-blue border would become a militarized zone and safe passage between the coasts would become impossible. Second, and more important, most of the hard-core red states are still only a little over 50% red. That’s millions of people thrown to the dogs; the poor, homosexual, black, and female subjected to oppression without the balance of national laws preventing such things. Yeah, things might be better in your state, but in mine? I shudder at the thought. Why should I have to leave my state or remain and be a victim of oppression so things can be better in yours?

  • http://www.blacksunjournal.com BlackSun

    Ebonmuse, here’s the thing. The Dems don’t have a filibuster proof majority in congress, so they have to gain the cooperation of at least some of the GOP to pass their agenda. In order to do so, it’s important to avoid polarization with them whenever possible. Carbon cap legislation is even opposed by some conservative Democrats–so we have to reach across the aisle.

    If it was still official policy to torture, you might have a point. But we’ve officially renounced torture, and the people who ordered it are already out of office. I’d like to see Bush and Cheney behind bars as much as the next person. But I’m just saying that there are still a whole lot of people in the GOP who think that the torture was a good or at least necessary thing. They wouldn’t even agree it was a crime at all.

    And we need their help to do much more important things. I agree that the torture was one of the worst things America has EVER done. But at this point, Obama has fully renounced the policy.

    What has not been fully renounced and/or disavowed are many of the techniques which brought on the financial crisis. Nor have many people been held to account or forced to give back their ill-gotten gains.

    The torture affected a few hundred people most of whom were sworn enemies of the U.S. The financial crisis has stolen cash out of the pockets of millions of Americans. I don’t think the torture is any less of a moral failing. It might even be worse. I’m just looking at the situation now and asking what the best use of the power and good will that Obama has would be.

    Believe me–I share your outrage about the torture. It lowered us to the level of every dictator and communist regime in history. But if it never happens again, that will be good enough for me.

  • Chris Mifflin

    Yeah, nice try, but look at the words of the law you cite. The law prohibits severe pain, not all pain. By your reading of the law no interrogation at all would be legal. In fact, by your interpretation of the law, not even confinement would be legal. All interrogation could be illegal as torture under your interpretation because it would cause severe mental anguish for any good muslim to sell of Allah to the infidels. So go back to the original argument and try again. Clearly no severe physical or mental pain was caused to KSM or Moussoui, neither claim physical or mental disability from their enhanced interrogation. That is to say BOTH MEN WERE IN THE SAME GOOD HEALTH AFTER THE INTERROGATIONS AS BEFORE. They are both still healthy, unrepentant men without permanent disability. Whatever they were subjected to, it wasn’t significant enough to cause lasting effects. You all have missed the point of the memos. They determine the enhanced interrogation do not violate the law. That reasonable people can disagree, should be well established and again, I think this whole thing stinks of partisanship. You guys need some Bush cronies convicted, as proof that you are right and end the discussion. If the standard is severe pain then does hooding cause severe pain? Does sleep deprivation? Does simply pushing someone into a wall to counter the perception that the Americans can’t touch you severe? Again, this just seems laughably benign compared to what really comes to mind when we consider torture.
    The fact that we signed the law (vague as it is) doesn’t trump the constitution, neither does the UN declaration of Human Rights. We also signed that, but it doesn’t take long to figure out their is a large portion of those “human rights” we also don’t guarantee as Universal Human rights(like Universal Health care which we don’t provide).
    Lastly, one has to either be ignorant of the true crime against the arbitrary, cruel treatments of Humanity by totalitarian regimes or completely committed to a partisan cause (as distinguished from an intellectual one) to compare the actions of the Bush administration to Stalin’s gulags, or Moa’s, etc. Those regimes showed no limits to the cruelty they were willing to inflict. Those regimes applied their powers arbitrarily, indiscriminately, and often without purpose. In the war on terror, the powers of the state were still confined to the most benign interrogation techniques. Could we do it better. Certainly. As I mentioned earlier, judicial review is necessary component in our democracy. We should not, however, stop using these techniques. Just compare how mild the interrogations are with the captives admitted crimes of mass murder.
    On the ex post facto, you cannot deny that different administrations interpret the law differently and that this has a real affect on the law , which is exactly what is happening here. The executive can make law through executive orders, but also through its interpretation. When the next guy changes the interpretation, it changes the way the law is executed. Which, again, is the point of the memos.

  • Chris Mifflin

    Correction: I said Ronald Dworkin wrote “Why Terrorism Works” when the author is actually Alan Dershowitz. My apologies for any confusion, I’m reading Freedoms Law so I’ve got Dworkin on the brain. Do check out, Alan Dershowitz’s “Why Terrorism Works” for a more philosophical, objective treatment of the threat of terrorism.
    One more comment, though. It seriously disturbs me to the extent that we allow the media (specifically the liberal media), to become our new clergy. Just like the church used to preach the bible to the illiterate masses, we’ve allowed the media to filter the reality of the war on terror. How many of you seriously have even read those memos? Just by reading the first page of the shortest of the four released by the Obama administration and available on the ACLU website, you would learn that the enhanced interrogations we a violation of US law which uses the same vague “severity” limit. The memos then go into specific details of these methods and why they don’t violate law. You don’t have to read far to learn (a fact that has been widely reported before the release of the memos) that water boarding, unarguably the most extreme and controversial of these techniques, has been used on our own soldiers for over 10 years. Since the memo was written in 2002, this means we’ve been water boarding our own soldiers in training for more than 17 years now. Why aren’t our soldiers filing suits for this heinous treatment? Probably, as the memo goes on to state, that only one soldier during this ten year period has failed the training exercise and none of those to participates experienced effects of the enhanced method past the moment that its administration ceased.

  • valhar2000

    Alex FCD: That little experiment has never been tried; as soon as the South seceeded war began. That, and the fact that the South back then was very different from what it is now. Nowadays, blacks and women actually stand a chance down there.

    Leum: Why would the border become a militarized zone? If the two areas (and ideologies) were separate they would not have to ffight each other for supremacy anymore. Americans can travel the middle east, for example, even if for the most part they don’t want to.

    Your other objections are better, though. That would make a lot of people getting the short end of the stick, but, are there really that many? How come they have so little influence then?

  • abusedbypenguins

    Prior to being sent to Viet Nam in 1968, I and many others were sent to survival training school by uncle sams’ canoe club (navy). This was a 3 week course where we taught how to live off the land and in the 3 weeks we were provided 3 meals. The rest we had to find on our own. The best part was the 3 days in a simulated prison camp where all of us were subjected to some mild forms of the above described torture. Such as being locked in a small box and every so often someone would bang on it and I would have to yell my prison number. Hunger and sleep deprivation was normal. This was to prepare us for eventual capture by the Viet Cong. Looking back this was just nuts as they knew they couldn’t protect us. Led off like lambs to the slaughter. To this day I have absolutely no respect for the military or anyone in a position of power and authority

  • Leum

    valhar, I suspect their would be fighting between the new countries. Two nuclear superpowers right next to each other with dramatic political, ideological, and religious differences is not a recipe for stability.

    We liberal red staters have so little power because things are up to a majority vote. If 50% of the population +1 individual want something, they’re going to get it. Thankfully most states require more than 50%+1 to amend their constitutions, but not all do (I’m looking at you, California), and plenty of nutty anti-choice, anti-gay, etc. laws can be passed that don’t violate state constitutions, especially if their supreme courts are filled by conservative governors–or worse, direct election of the people (I think Alabama does this).

    And there are plenty of us. Sure, not as many as in blue and swing states, but we are out there, doing our level best to keep our states from sliding into complete wingnuttery. As well as children and immigrants (of both legal and illegal varieties) that have no say in how their home is run.

  • bestonnet

    Two nuclear superpowers is a recipe for stability, to say otherwise is to ignore a lot of recent history (though I’d prefer only the north have the bombs and jesusland getting the NPT).

  • http://www.patheos.com/blogs/daylightatheism Ebonmuse

    Chris Mifflin:

    The point here is, actual torture leaves permanent physical or mental disability.

    That definition is contrary to every legal understanding of torture in the history of the civilized world. By your standard, we could attach electrodes to prisoners’ genitals, pull out their fingernails, or burn them with hot coals and cigarettes, because none of those things leave “permanent physical or mental disability”.

    First I want to know what’s so wrong with sweeping someone off of the battlefield who is trying to kill you? Are you seriously arguing that their detention alone is unjustifiable?

    Yes, I am. That is precisely the problem with conservatives: they assume that if someone is arrested, it must be because he’s a Bad Man and an Evildoer who deserves whatever he gets. This blind faith in the infallibility of government is otherwise seen only in the blind faith of fundamentalists in their holy texts. Has the possibility ever even occurred to you that innocent people might be mistakenly swept up in this dragnet? Are you perhaps ignorant of the fact that many people imprisoned at Bagram or other black sites were civilians who were snatched up far from any battlefield or any combat zone?

    If, as you say, Khalid Sheikh Mohammed is a very bad man, then there’s no reason to be against giving him a trial. We should put all these captured al-Qaeda members on trial; that way, we could show the world the evidence of their evil deeds, and likewise show that we are a civilized nation, a nation of law, that does not stoop to the brutal and sadistic tactics of our enemies. Instead, we’ve held people in secret prisons, without charging them with crimes or giving them any opportunity to prove their innocence, subjected many of them to tortures condemned by the civilized world, and asserted our right to imprison them as long as we please. (Don’t you dare say that “these techniques were not used indiscriminately”; you have absolutely no way of knowing how many people were tortured or for what.) Yes, I am arguing that that is unjustifiable, and my position does not change even if some of the people we’re holding really are terrorists. If they are, they deserve to be punished through the machinery of justice, not through this rigged, Kafkaesque shadow legal system the Bush administration sought to create.

    Now, add the fact that there is no end to hostilities in this war and this more than justified the detention of all prisoner determined to be combatants. Many Americans like John McCain served indefinite periods as POWs waiting for the end of the Vietnam war, WWI, and WWII. Releasing them, unless they are non-combatants, is not an option.

    The Bush administration specifically denied that detainees at Guantanamo and elsewhere were prisoners of war. POWs have certain legal rights under the Geneva Conventions – not being tortured ranks fairly high on the list – and the Bush administration’s specific intent was to create a legal no-man’s-land where detainees had no rights at all.

    It is a verifiable fact that these techniques also resulted in the capture of KSM and others, as well a alerting authorities to terrorist plots in the works in the US and UK which were subsequently averted.

    Oh, it is, is it? Please list some of the terrorist plots which were averted by the use of torture.

    Putting what the Bush administration ordered on par with the actions during the inquisition, Soviet rule, Chinese rule, or any really torturous societies isn’t just askew, it is flat out wrong.

    No, it’s not, because they were the exact same techniques. In fact, that’s where they came from.

    To list just one example: When the Nazis captured members of the French Resistance or other people suspected to be spies, they subjected them to a battery of torture techniques which included sleep deprivation, stress positions, and freezing baths. (Any of that sound familiar?) When the Gestapo did this, they called it Verschärfte Vernehmung, which is German for “enhanced interrogation”. (Again, sound familiar?) These techniques were chosen specifically for their ability to break the prisoner’s will without leaving lasting damage that might later prove embarrassing or be used to prosecute the torturers.

    The American SERE program was created after the war from our knowledge of these and other tactics used by our totalitarian enemies. American soldiers were subjected to these tortures – only in a training context, of course, and only for brief periods – in order to learn what they felt like so that they could more effectively resist them. The Bush administration reverse-engineered the SERE program, explicitly adopting the tactics of those totalitarian enemies, and turned it into a training manual to teach Americans how to inflict them. This is monstrous, revolting, and thoroughly evil, and I question the morality and the patriotism of anyone who would ever defend it as a legitimate tactic of war.

  • Lynet

    I, too, was struck by Andrew Sullivan’s comparison with that quote from 1984.

    The greater the outcry over torture, the easier it will be for Eric Holder and the Obama administration — or Congress, for that matter — to investigate what happened and possibly prosecute. I don’t think it makes sense to say that we should be silent so that Obama won’t have to use political capital to prosecute these things. If we were to make so much noise that Obama was almost forced to prosecute, then the very fact that he did so under pressure would make it easier for him to excuse it. By contrast, if we make less noise, Obama will be under less pressure and can make his own decisions, but whatever he decides, it will still be better that noise was made!

    Inasmuch as Obama’s statement of intent not to prosecute is taken to refer to those who acted in good faith as stated, I think I support it. However, I am not willing to excuse lawyers who gave legal opinions in bad faith (supposing that to be the case; IANAL), nor can I excuse Bush and Cheney for denouncing Abu Ghraib on the one hand and authorising similar techniques on the other hand as in the 2005 memos. The most important thing is that this not happen again. Prosecution is as important an aspect of that here as it would be with any crime.

    Chris Mifflin, if you think those legal memos are legitimate interpretations of the law — if you think no laws were broken — then you should be willing to have a prosecutor investigate, since you would be confident of acquittal. However, note that the memos themselves acknowledge that some of the methods being authorised have been decried by the American government when used by other countries.

  • bestonnet

    Ebonmuse:

    That is precisely the problem with conservatives: they assume that if someone is arrested, it must be because he’s a Bad Man and an Evildoer who deserves whatever he gets.

    That seems to be a very common position in society (not just the US).

  • Chris Mifflin

    I’m glad you brought up the first point. I don’t possess a cruel imagination so naturally I had forgotten about the fingernails. I disagree with the burning examples because cigarette burns or hot coal leave permanent physical scars. Electricity can also cause severe neurological damage. These therefore fit into the definition of torture and are absolutely prohibited. I’ve also previously acknowledged that even the enhanced interrogation techniques when used in excess can and will cause permanent physical and psychological damage. In all these situations I am adamantly opposed to torture. However, to suggest that there is no acceptable middle ground between a completely hands off approach and all out inquisition is absurd. Pulling the fingernails out sounds barbaric, whatever that is, and probably is, but is it never justified? I’m mean, it hurts like an SOB, but they’ll grow back Again, I pose the question and I hope someone can explain this to me, but if it would be justified to shoot and kill a man about to set off a bomb to commit mass murder, why is it so wrong to cause comparitively less pain and put him in stress positions to find out about a bomb (or suicide bomber) is hiding?

    Again, as to the second point, and I’m also glad you brought this up, I am not unaware that some some have been snatch up on foreign battlefields. I am also aware of, and this is something you didn’t point out, that many people were turned over to us because of petty tribal disputes, or for large cash rewards, and many other reasons. There’s a great book called the Interrogators by Chris Mackey that talks about how FUBAR that situation is. To make matters worse, he explains how sometimes prisoners would be dropped off with no information. Not who they were, where they were captured, why they were arrested, nothing. I will not attempt to justify these actions. Indeed, separating the good guys from the bad guys is a difficult task, but not impossible. Once this is established, however, how we treat the bad guys is exactly what we are talking about. You can’t seriously deny that there aren’t plenty of bad guys that we have every right to detain. You simply assert that the bush administration arbitrarily used these enhanced techniques but you offer no proof. How dare I? How dare you condemn your country when you full well recognize this isn’t the case? In fact, the memos are evidence to the contrary. Have you read the memos? The memos that started this whole thing? They are but a fragment of what seems to be a concerted effort to establish guide lines and limits to ensure that the law was not broken. Also, this article details some of the results of the enhanced interrogation techniques:

    http://corner.nationalreview.com/post/?q=ZTEzMjc3YWU3ZmJiNzA3NThhNjdiMmY4MDkzNjRlMDY

    It specifically mentions how the enhanced interrogations lead to the arrest of KSM (911 planner) and Jose’ Padillia, the alleged dirty bomber. These terrorists would have killed as many as they could if allowed to roam free. They don’t deny this so why should you? It is a verifiable fact. That article is just one place I’ve read some of these FACTS. I’m sure there is a lot that is still classified about all this (good and bad)so we will really have to wait for the final analysis, but what we know is a good start. In the case of terrorism it is difficult to say how many lives were actually saved. It is said of espionage that your failures are public and your success is almost never known. The same may also be said of terrorism. What is amazing is many of these guys don’t deny they’re guilty and would do it again if they had the chance. Yet you deny our right to confine and interrogate them? Please, sincerely, explain why?

    I am not for indefinite detentions. I believe these people should be put on trial but that probably doesn’t satisfy you, since most acknowledge that much, if not all of these trials would be in secret military tribunals. I’m for as open and transparent a system as humanly possible but we also have to acknowledge that there is such a thing as national security and it needs to be protected. So, some secrets will have to stay secret. National security should never be used as a guise to protect details that would be embarrassing. The question of what to do with all these people is far from an easy question. Once you sort out the good guys from the bad guys as best you can, you’ve got to sort out the bad guys. Bad guys run the gambit from limo drivers to would be suicide bombers; from financiers and recruiters, to bomb makers. I wasn’t arguing that they shouldn’t have a trial, they should. But just because you think the bush administration should have solved one of the most complex issues of the last decade more quickly, doesn’t make him a war criminal.

    As to your final argument, that the Bush administration is as bad as the soviet union, I think you just prove my point about partisanship. Yes, we didn’t invent enhanced techniques, but your version is a very lazy reading of history. You ignore the fact that these techniques are our upwards limit, whereas in these other regimes they were a few tricks in a bag of hundreds. Under the Bush administration these enhanced methods were limited, whereas totalitarian regimes applied them on a wholesale basis. Look, I grant that the Nazis used sleep deprivation, stress positions, and freezing baths. They also arrested people. Are we supposed to stop that too? It is important to realize, if SS or Gestapo had you in their clutches and the worse they did to you is put you in a stress position, you got off really lucky.

    Moreover, you have still failed to address one major issue. I don’t deny that these enhanced techniques could rise to the level of torture, I just don’t see any evidence that it did. Sure, you can deprive someone of sleep to the point of a mental break down, but surely not all sleep deprivation is torture. Is one hour sufficient? Two hours? It seems to me that the torture issue is really a diversion for you. Torture is a catch phrase for “everything of, or relating to Bush and Cheney is bad.”

    In any case, this false moral equivalence is worthy or ridicule. I’ll be respectful, however, and I won’t insult your sense of morality or patriotism. Attacks against the man are what we result to when we run out of real things to say, and I’m not there yet. You don’t know me, but you can smear me as a conservative if you want. I suggest you take a look at chapter in the Dershowitz book I mentioned. He is definitely a liberal so maybe you could evaluate the question more objectively by reading his words rather than mine. I will warn you that he is perhaps willing to justify torture, as opposed to my argument that the enhanced methods used don’t rise to the level of torture.

  • bestonnet

    Chris Mifflin:

    Pulling the fingernails out sounds barbaric, whatever that is, and probably is, but is it never justified? I’m mean, it hurts like an SOB, but they’ll grow back Again, I pose the question and I hope someone can explain this to me, but if it would be justified to shoot and kill a man about to set off a bomb to commit mass murder, why is it so wrong to cause comparitively less pain and put him in stress positions to find out about a bomb (or suicide bomber) is hiding?

    It has something to do with the fact that torture is not a reliable source of information. You’re more likely to get misinformation or a false confession out of torture than the truth (and the methods the US used are known to cause people to make false confessions).

    Chris Mifflin:

    I don’t deny that these enhanced techniques could rise to the level of torture, I just don’t see any evidence that it did.

    I believe Christopher Hitchens would disagree with you.

    I’ll let others pick apart your strawmen.

  • NoAstronomer

    For those who argue that the ‘only following orders’ defense didn’t work at Nuremberg and shouldn’t work here: if you are seriously comparing herding men, women and children into gas chambers to the techniques described in the CIA memos then you need a serious reality check.

  • http://whyihatejesus.blogspot.com OMGF

    It’s not whether the specific actions are torture or not that’s being compared to Nuremburg. It’s the defense of “just following orders.” If those orders are war crimes, then it’s simply not a defense that we can or should allow. So, whether the torture was worse or not is inconsequential to the point.

    And, as to those who claim that what we did wasn’t so bad because others do it too, or do worse, that still doesn’t make it right (I’m looking at you Mifflin).

  • http://dominicself.co.uk Dominic Self

    (Incidentally, anyone who still believes that torture is an effective method for obtaining information should reflect on the fact that Khalid Sheikh Mohammed was apparently waterboarded 183 times.)

  • Alex, FCD

    By your reading of the law no interrogation at all would be legal. In fact, by your interpretation of the law, not even confinement would be legal.

    Oh, well done there, Boutros Boutros Ghali, you certainly caught me. I cut off my quote of the UNCAT just before this sentence:

    It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

    Lawful sanctions like, you know, prison.

    Responding to assorted babbles about what constitutes tortures.

    I refer you to the US Code, Title 18, Section 2340:

    (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
    A) the intentional infliction or threatened infliction of severe physical pain or suffering;
    B) 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; [read: sleep deprivation]
    C) the threat of imminent death; [read: waterboarding] or
    D) 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[...]

    I don’t deny that these enhanced techniques could rise to the level of torture, I just don’t see any evidence that it did.

    Waterboarding. Waterboarding is torture. It’s against the law. I hereby refer you to the US Department of State’s 2005 report on the country of Tunisia:

    The forms of torture and other abuse included: electric shock; submersion of the head in water[...]

    As to your final argument, that the Bush administration is as bad as the soviet union, I think you just prove my point about partisanship.

    Nobody said that, but if you want to win a point that badly, yes, the Bush administration was morally preferable to the Stalin administration. Congratulations, Mr. Bush, you are entitled to such grand descriptions as “not a mass murderer”.

  • Paul

    Congratulations, Mr. Bush, you are entitled to such grand descriptions as “not a mass murderer”.

    100k or so Iraqi civilian casualties would like a word with you.

  • Paul

    I’m just disappointed that even with a progressive president (and a former law professor, to boot) we as a nation are still unwilling to live by the rules we do our damnedest to enforce on other nations. Exceptionalism is a joke.

  • Wayne Essel

    I haven’t seen this in the thread yet, so I’ll introduce it here. In my mind it is possible that the reason for not pursuing prosecution is that the military is concerned that the prosecutions would cause personnel to obsess about the legality of orders and that the resultant delays in carrying them out could be catastrophic.

    In the minds of military leaders, all orders are to be carried out without question. It’s one of the reasons I got out. The absolute control is absolutely scarry at times.

  • Chris Mifflin

    Alex, I’m not sure your a lawyer, in full disclosure I am not, but I really suggest you take a look a the Dershowitz book. For the last 30 years or so the man has been lecturing at Harvard Law School as well as writing numerous best selling books. We can go back and forth on the law you keep quoting but it doesn’t change the fact that the word severe is vague and open to interpretation in the context of the law. Dershowitz offers a detailed discussion on this point. The most salient issue however, as I stated earlier, is no matter what the law states, our signing of it was conditional. We follow that law to the extent that it doesn’t conflict with the eighth amendment of our constitution. This might surprise many of you, but the eighth amendment does not prohibit torture. As Dershowitz explains, the eighth amendment only prohibits cruel and unusual PUNISHMENT. This leaves the door wide open to torture for information. However you feel about it, this doesn’t change the fact that torture is not against the law.

    You still refuse to acknowledge the vagueness of “severe.” Is one hour of sleep deprivation sufficient to qualify as torture? If so, do teachers torture their students, when their students lose sleep studying for a test? If KSM is as healthy as he was the day before he entered US custody, what was so severe about his treatment? Wow, 183 times. That’s a lot of waterboarding! Here’s another number for you guys: 2974. That’s the number of people KSM killed in the 911 attacks he helped plan (not including the 18 highjackers). Now add Daniel Pearl and thousands of other innocent muslim’s he’s helped kill and I’ll feel bad for him when the number of times he’s been waterboarded reaches that number. But punishment isn’t the point. If waterboarding KSM 3000 times provided information that saved lives of people HE intended to kill I would still submit that what was done was wrong. You still have not answered the question about our moral intuition: If it would be acceptable to kill KSM if he had his finger on a bomb, what is so wrong with a much less severe course of action? And if waterboarding is so severe and is definately torture, then why have we been waterboarding our own troops for almost 20 years, INCLUDING THE CLINTON ADMINISTRATION? Still, not one person has cared to comment on the evidence in the first memo released! One last point on waterboarding for Alex. Nice quote, but what you quoted isn’t waterboarding. Waterboarding does not include “submersion of the head in water.” There is good reason for this, too. The submersion of the head in water can result in water entering the lungs which can cause a host of severe conditions that can result in death even after a persons head has been removed from the water. In contrast, a piece of cloth is placed over a person’s face in waterboarding to prevent this from happening (see Hitchen’s video). Yes, Hitchens says it’s torture and he stopped the treatment almost immediately. This, to me, seems to defeat the point of the exercise. The point is not whether it is horrible, it is I grant you that. The point is, is it torture? Bad does not equal torture. What would have been more helpful would be if Hitch had undergone a full treatment and then been evaluated medically after. As it stands, Hitch seems be as strong as ever (did you guys catch the great cartoon of him riding the shark!)

    One last point (my lunch breaks coming to an end), on the effectiveness of torture.

    Even if we assumed for the moment that torture was absolutely prohibited by this law, a careful examination of the world’s adherence to it’s principles will serve us well. Look at how well many of the worlds signatories follow the law. Egypt, Saudi Arabia, Jordan, etc. all signed this law and they do a bang up job. The United State’s adherence puts these countries to shame, even with Bush’s actions, yet no one follows this example. So, even assuming torture is illegal which it is not, what good does it do to sacrifice your own citizens lives? This should be very true for atheists. We will not see our loved ones in heaven. This is the only life we get and we should not sacrifice it to avoid enhanced interrogations that result in very little harm to those who endure it, especially compared to those who would have to suffer the needless, senseless violence of terrorism.

    It is flatly asserted that torture is not effective. This is, again, verifiable false. No one has said anything about the link to the article I posted and I highly recommend that you do. Also look to the Dershowitz but for many more examples. This is why torture persists. Even police use milder forms of mental torture that our courts have upheld time, and time again. The point here is important. Simply pretending that torture doesn’t save lives and that it is never justified ignores the facts and ensures that the more pernicious, unjustifiable forms of torture persist indefinitely.

  • http://whyihatejesus.blogspot.com OMGF

    That’s a lot of waterboarding! Here’s another number for you guys: 2974. That’s the number of people KSM killed in the 911 attacks he helped plan (not including the 18 highjackers).

    Sorry, but two wrongs don’t make a right. Do you think that we’d be justified in killing him? What you speak of is vengeance, not justice or morality.

    And, yes, you are speaking in punitive terms. We had a right to waterboard him because he did some bad things? Rubbish. By that logic, god has a right to send us to hell after we die, which is just more rubbish.

    Even if we assumed for the moment that torture was absolutely prohibited by this law, a careful examination of the world’s adherence to it’s principles will serve us well. Look at how well many of the worlds signatories follow the law. Egypt, Saudi Arabia, Jordan, etc. all signed this law and they do a bang up job.

    That’s just sad. Again, two wrongs don’t make a right. Just because they are immoral doesn’t mean that we should be or are morally excused from the same behavior.

    It is flatly asserted that torture is not effective. This is, again, verifiable false.

    Actually, the best studies available show that it is ineffective, as the person being tortured is likely to admit to anything in order to end the torture.

  • http://corsair.blogspot.com corsair the pirate

    Actually, the best studies available show that it is ineffective, as the person being tortured is likely to admit to anything in order to end the torture.

    Of course it the interrogator is any good, than the question he asks will not be something that the interrogatee can just “admit to.” It will be something verifiable with details that can be cross checked with other questions later in the interrogation session or in later sessions. And then checked in the real world. When the interrogatee knows this, he would be less likely to lie to “end the torture.” The questions run more along the lines of “tell us where Bin Laden is” and not “Do you know where Bin Laden is.” Yes or No can’t be verified reliably. And when he answers that Bin Laden is currently working at Piggly Wigglys in the produce section, that is something you can check.

    There really is a method behind all this.

  • http://whyihatejesus.blogspot.com OMGF

    I find it highly unlikely that no one has thought of that…and yet, we still find that torture is ineffective.

  • http://whyihatejesus.blogspot.com OMGF

    Here’s a good write-up on the morality of torture and its effectiveness.

    The highlight:

    While there is significant debate over the general effectiveness of torture, it appears that it is not a particularly effective means of acquiring accurate information.

    First, consider the American and European witch trials. During these trials a significant number of people confessed, under brutal torture, to being witches. If torture is an effective means of acquiring truthful information, then these trials provided reasonable evidence for the existence of witches, magic, the Devil and, presumably, God. However, it seems rather odd that such metaphysical matters could be settled by the application of the rack, the iron maiden and the thumb screw. As such, the effectiveness of torture is rather questionable.

    Second, extensive studies of torture show that it is largely ineffective as a means of gathering correct information. For example, the Gestapo’s use of torture against the French resistance in the 1940s and the French use of torture against the Algerian resistance in the 1950s both proved largely ineffective. As another example, Diederik Lohman, a senior researcher for Human Rights Watch, found that the torture of suspected criminals typically yields information that is not accurate. A final, and rather famous example is that of Ibn al-Shaykh al-Libi. Under torture, al-Libi claimed that Al Qaeda had significant links to Iraq . However, as he himself later admitted, there were no such links. Thus, the historical record seems to count against the effectiveness of torture.

    Third, as history and basic human psychology show, most people will say almost anything to end terrible suffering. For example, a former prisoner from Abu Ghraib told the New York Times that, after being tortured, he confessed to being Osama Bin Laden to put and end to his mistreatment. Similar things occur in the context of domestic law enforcement in the United States : suspects subjected to threats and mistreatments have confessed to crimes they did not commit. As such, torture seems to be a rather dubious way of acquiring reliable intelligence.

  • http://www.myspace.com/driftwoodduo Steve Bowen

    The United States is a nation of laws: badly written and randomly enforced.
    Frank Zappa

  • Chris Mifflin

    Yes, to answer your question, all things being equal, KSM is eligible of the death penalty. Unless you’re against the death penalty, you can’t deny this fact. One murder is generally sufficient for this penalty, so 3000+ murders must make him eligible, right?

    I absolutely deny, however, that torture would be an appropriate punishment. Nothing I have said thus far can be fairly construed to extract such a meaning. I’m not saying the amount KSM was waterboarded should correlate to the number of people he killed, this would be inhumane, and you would be right. However, since the only reason enhanced interrogation methods or torture can be justified is to obtain information that saves lives, what I clearly mean is, the more that’s at stake the further the people involved will be willing to push the envelope, whether you like it or not.

    Yes, I get it. This doesn’t resolve the normative debate, but it does weigh in it as it speaks to the moral intuitions of many (think Bush, first president since Reagan elected by the majority of American in 2004, well after we’d caught wind of what was going on). The normative debate revolves around rights. It shouldn’t be hard to convince you that rights don’t come from god so where your universal human rights come from? No where, that’s where. Rights are political grants of immunity from the government or the people by agreement depending on what government you live under, nothing more. They are valuable insofar as they are respected and protected. A universal theory of rights is a necessity for most free societies in order to demonstrate their commitment to their own citizens rights, but generally don’t go as far as to enforce them because of sovereignty, among other issues. Citizens view universal human rights differently. Citizens rightly recognize that, since there is no physiological difference between KSM and me, he should have the same basic rights. I agree. Fortunately for us, in no sense is this absolute. You would grant that I have the right to kill him if he came at me with the intent of harming me, or any of mine. You should also agree that he may be executed (setting the dp debate aside for the moment) for his crime or at least deprived of his liberty for quite some time if not for the rest of his life. How on earth can you claim that KSM’s right to not experience temporary, albeit excruciating, pain with no lasting effect outweighs the right to life of the thousands he had already murdered and the countless more victims whose fate he sealed before his capture. What if you could save those lives, unseal those fates? Wouldn’t that be the moral thing to do? A jewish saying goes, “to save a life, is to save the world entire. I’m not jewish, ethnically or religiously, but there is wisdom in that.

    As to OMGF’s lazy history.
    1.) The witch trial produced the results they were intended to. Idiots believed in witches so they found them. OBL exists. He is not a figment of our imagination. There is a good and a bad way of doing any task. Thank you pirate.
    2.) Your anonymous extensive studies are wrong for the purpose you offer them. I have no doubt that the Gestapo’s wide array of horror produced mixed results, that is when they were actual torturing for information and not for fun or as part of a march from death. It’s not hard to understand why, either. For the Nazis and many others, torture was the prelude to an even more painful death. When in the grasps of the people you compare our government to, pain is the only thing these people had left. In the case of the US, enhanced interrogation is as rough as it gets (unless we painlessly execute the inmate later, but it is only rough insofar as death is final), hence a much larger incentive to talk. See Dershowitz for a more specific history on the french experience in Algeria. French General Paul Aussaresses would disagree with you on that score. He wrote, “The best way to make a terrorist talk when he refused to say what he knew was to torture him.”
    I find it interesting that when you get to the Human Rights Watch your “largely ineffective” language changes to “typically.”
    3.)I shouldn’t have to justify Abu Ghraib since even under the bush standards they were illegal. I am glad you will acknowledge the domestic law enforcement situation though; which is A.) A broad reading of torture can be extended to almost any circumstance (think being forced to watch ROck of Love), and B.)Our supreme court has upheld even the choking of a kidnapping suspect in or order to effect the safe return of a little girl. You’re missing the point. Of course torturing an innocent person lends itself to nothing good. No one disagrees with this. The point is that if you HAVE INFO, torture WILL make you give it up.

    More specifically, look to the link for specific examples in the Bush war (limited by what little has been classified so far). Again, look to the Dershowitz book for many other specific examples of torture which resulted in lives saved.

    The only reason that justifies enhanced interrogations, or in the extreme, perhaps some methods of torture is the necessity of saving lives. Every government is under pressure to meet this most basic and fundamental duties, and it is this pressure which will ensure that torture will never be extinguished from this earth. Your insistence that it is never legitimate or successful in saving lives ensures that when it does rear its head again in our society, and IT WILL, it will be hidden and not subject to societies judgment.

  • 2-D Man

    …KSM’s right to not experience temporary, albeit excruciating, pain…

    No one is arguing for this. The point that has been made to you (I count three times by OMGF alone now) is that no one has the right to deliberately inflict this upon him, regardless of what he has done.

    Your insistence that it is never legitimate or successful in saving lives…

    Again, no one is arguing that it is never successful. People have told you that it is unreliable. I think most people here would agree that we should make it against the law, and if some interrogator really thinks that torture is what will solve the problem, (s)he can choose to break the law. There will be consequences for doing so, but if it can be shown that the law and their duty were in conflict, then the justice system will take that into account.

    From the article you linked:

    In fact, what Abu Zubaydah disclosed to the CIA during this period [of torture] was that … [KSM's] code name was “Muktar” — something Zubaydah thought we already knew, but in fact we did not. … This information provided by Zubaydah was a critical piece of the puzzle that allowed them to pursue and eventually capture KSM.

    If he thought the CIA knew this, it would not have required waterboarding to get him to reveal it. Torturing Zubaydah was not necessary to capture KSM.

    In the case of Padilla, there is nothing to indicate that it was the “enhanced interrogation” techniques used on Zubaydah that gave the CIA critical information as opposed to regular interrogation. And there is plenty that indicates it delivered false leads, which required time and resources to track down.

    So no. You have not made a good case for torture thus far, Chris.

    And please start using blockquote tags and paragraph breaks.

  • http://www.patheos.com/blogs/daylightatheism Ebonmuse

    As Dershowitz explains, the eighth amendment only prohibits cruel and unusual PUNISHMENT. This leaves the door wide open to torture for information. However you feel about it, this doesn’t change the fact that torture is not against the law.

    I usually don’t use language like this, but this is one of the most appallingly stupid arguments I have ever seen. Do you seriously contend that the Eighth Amendment can be completely evaded simply by what word you choose to describe the conduct at issue? Do you really expect us to believe that a judge would accept the assertion: “I wasn’t punishing the defendant, your honor, I was just torturing him”?

    You also seem to be ignorant of the fact that the Eighth Amendment is not the only relevant law here. Torture is specifically prohibited by multiple treaties and statues, as even Steven Bradbury knows. He says himself in one of his OLC memos:

    Under 18 U.S.C. § 2340A, it is a crime to commit, attempt to commit, or conspire to commit torture outside the United States.

    Here’s a link to the U.S. Code so you can read it for yourself.

    And furthermore, from the Washington University Law Review:

    Common Article 3 of the Geneva Convention Relative to the Treatment of Prisoners of War, which the Senate unanimously ratified in 1955, prohibits the parties to the treaty from acts upon prisoners including “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture…”

    Second, the International Covenant on Civil and Political Rights, which the Senate ratified in 1992, states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Third, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, which the Senate ratified in 1994, provides that “[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction…”

    …The four principal statutes which Congress has adopted to implement the provisions of the foregoing treaties are the Torture Act, the War Crimes Act, and the laws entitled “Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government” and “Additional Prohibition on Cruel, Inhuman or Degrading Treatment or Punishment.” The first two statutes are criminal laws while the latter two statutes extend civil rights to any person in the custody of the United States anywhere in the world.

    Note that treaties which are ratified by the Senate are binding law in the United States, and as the article states, Congress has passed additional laws to support the treaties’ language by making it a criminal offense to torture. We have also court-martialed American soldiers for waterboarding.

    Wow, 183 times. That’s a lot of waterboarding! Here’s another number for you guys: 2974. That’s the number of people KSM killed in the 911 attacks he helped plan (not including the 18 highjackers).

    You appear to be operating under the assumption that if Khalid Sheikh Mohammed is a very bad man, then we’re justified in doing anything we want to him. That may be standard operating procedure in a totalitarian state, but it’s not how things work in a nation of law. Torture is illegal, period, no matter who the person being tortured is. The reason we outlaw it is precisely because we are better than those who would seek to destroy us, whereas you seem intent on dragging us down to their level.

    And if waterboarding is so severe and is definately torture, then why have we been waterboarding our own troops for almost 20 years, INCLUDING THE CLINTON ADMINISTRATION?

    The use of waterboarding and other such techniques as training methods in the SERE program is (1) voluntary; (2) for very brief periods (soldiers are not shackled in stress positions for hours, nor waterboarded hundreds of times in a month); and (3), the point you still refuse to grasp, done so that soldiers will be better able to resist these tactics if ever captured and subjected to them. It is not meant to be a training manual to teach them how to torture others!

    The point is not whether it is horrible, it is I grant you that. The point is, is it torture? Bad does not equal torture.

    Since you mentioned Christopher Hitchens volunteering to undergo the process, let’s reiterate his clearly stated conclusion:

    …if waterboarding does not constitute torture, then there is no such thing as torture.

  • http://www.patheos.com/blogs/daylightatheism Ebonmuse

    I also want to add some points on the effectiveness of torture as an interrogation technique:

    When CIA officials subjected their first high-value captive, Abu Zubaida, to waterboarding and other harsh interrogation methods, they were convinced that they had in their custody an al-Qaeda leader who knew details of operations yet to be unleashed, and they were facing increasing pressure from the White House to get those secrets out of him.

    The methods succeeded in breaking him, and the stories he told of al-Qaeda terrorism plots sent CIA officers around the globe chasing leads.

    In the end, though, 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. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida — chiefly names of al-Qaeda members and associates — was obtained before waterboarding was introduced, they said.

    As others have mentioned, the primary effect of torture is to coerce the victim to say whatever he thinks his interrogators want to hear so that they will stop torturing him. The inevitable result is that U.S. intelligence agents are sent off on wild goose chases that not only accomplish nothing, but divert time and energy from genuinely effective investigative techniques that would truly contribute to keeping the country safe.

  • Demonhype

    Thanks, OMGF. That’s exactly what I was going to say (re: following orders). It’s not the size of the war crime, it’s the fact of the war crime. It’s like there are two rapists, and you convict one but pardon the other one because he has a smaller penis.

    Ebonmuse: I didn’t know that about the CIA. I was mostly reacting to the other comments referring to them as soldiers–I don’t see that it matters if they were. Even if they were CIA, I agree they are still responsible.

    As to the witch trial thing, I don’t see how the relative real or not real status of the threat matters. To the witch-hunters, witches were a very real threat to their society and their souls, lurking everywhere just like the terrorists, waiting to spring and bring down civilization at any given moment. Any means were justified to protect against this threat. Even the people being tortured as witches believed witches were real–they just knew they weren’t witches themselves. Not only that, but it wasn’t usually enough to admit to being a witch. You had to name other witches or else your confession was meaningless and they would keep going until you either transferred your misfortunes on some other innocent person or they got sick of it and killed you.

  • http://whyihatejesus.blogspot.com OMGF

    Chris Mifflin,
    2-D Man and Demonhype both gave excellent rebuttals, so I won’t tread over ground that’s already been trodden. I’ll simply address a couple other points:

    I absolutely deny, however, that torture would be an appropriate punishment. Nothing I have said thus far can be fairly construed to extract such a meaning.

    Really? You said this previously:

    Wow, 183 times. That’s a lot of waterboarding! Here’s another number for you guys: 2974. That’s the number of people KSM killed in the 911 attacks he helped plan (not including the 18 highjackers). Now add Daniel Pearl and thousands of other innocent muslim’s he’s helped kill and I’ll feel bad for him when the number of times he’s been waterboarded reaches that number.

    Now, it’s true that your next sentence was, “But punishment isn’t the point,” but I’m not buying it. It’s plainly obvious that you’re upset at the actions of these people (understandably) and you are looking to obtain your pound of flesh. Else, you would not be so quick to tie the number of waterboardings to the number of dead.

    How on earth can you claim that KSM’s right to not experience temporary, albeit excruciating, pain with no lasting effect outweighs the right to life of the thousands he had already murdered and the countless more victims whose fate he sealed before his capture. What if you could save those lives, unseal those fates?

    You can’t save the lives of the people he already had a hand in killing. Again, this is punitive and vengeful talk, not justice.

    The witch trial produced the results they were intended to.

    The author’s point exactly (BTW, I didn’t write that). People confessed to being witches, they confessed to doing all sorts of things, they even did so without answering yes/no questions. They would make up stories about the things they did, all to stop the torture.

    I have no doubt that the Gestapo’s wide array of horror produced mixed results, that is when they were actual torturing for information and not for fun or as part of a march from death.

    If you have no doubt that the results were mixed, then what’s there to talk about? Whether they switched to doing it for fun or not later is inconsequential.

    In the case of the US, enhanced interrogation is as rough as it gets (unless we painlessly execute the inmate later, but it is only rough insofar as death is final), hence a much larger incentive to talk.

    This is non-sensical. You’re actually contending that because the person might not die that they will reveal more accurate information?

    I find it interesting that when you get to the Human Rights Watch your “largely ineffective” language changes to “typically.”

    I find it interesting that you have an inability to read the plain English. There’s nothing “interesting” in the wording used there, nor does it display any sort of inconsistency.

    I shouldn’t have to justify Abu Ghraib since even under the bush standards they were illegal.

    What, you don’t think “enhanced interrogation techniques” were being used there? The naked pyramids were not the only thing going on. This is an account of what was obtained through the methods you are defending.

    I am glad you will acknowledge the domestic law enforcement situation though…

    Are you trying to miss the point? The point was that when cops use heavy-handed tactics, we see the same results – namely people admitting to things they didn’t do, etc.

    Your insistence that it is never legitimate or successful in saving lives ensures that when it does rear its head again in our society, and IT WILL, it will be hidden and not subject to societies judgment.

    Ah, I see. We have to tolerate torture, even though it is illegal, and make sure that it’s out in the open and done so that we can avoid people doing it in secret? I think my head might explode.

  • bestonnet

    Chris Mifflin:

    Your insistence that it is never legitimate or successful in saving lives ensures that when it does rear its head again in our society, and IT WILL, it will be hidden and not subject to societies judgment.

    No, the way to prevent from occurring again is to consistently throw those who are caught torturing people behind bars so as to create the impression that if a person commits torture that they will be punished for it.

    Recording all interrogations is also a very good safeguard against such behaviour.

  • Quath

    For me, it is simple that we should prosecute people responsible for torture because it is what we would want done if it happened in another country. We can not afford to be hypocrits about this.

  • windy

    The torture prosecutions would be gratuitous self-righteous revenge.

    Unlike continuing to detain someone who was an assistant cook for the Taliban seven years ago. That’s highly relevant, and not at all backwards-looking.

  • http://www.blacksunjournal.com BlackSun

    Unlike continuing to detain someone who was an assistant cook for the Taliban seven years ago. That’s highly relevant, and not at all backwards-looking.

    windy, I made a pragmatic argument as opposed to an ideological one. Why do you then (sarcastically) suppose that I support any of the detentions or torture? We should have followed “innocent until proven guilty” and habeas corpus for all prisoners. Guantanamo should never have happened. We should never have authorized torture or violated the Geneva convention in any way.

    Ideally we should follow all of our laws all of the time. But in practice, that’s just not what happens. I’m making a practical calculation that it might be disadvantageous for the more important agendas of his presidency (like climate regulations and decarbonization) for Obama to aggressively prosecute the wrongdoings of his predecessor.

    That does not mean I agree in any way with those wrongs. Why do I have to spell it out?

  • http://www.terapias.com.pe Sergio

    The law is equally valid for those that order tortures to be inflicted and for those that obey such orders, whether orders were imparted verbally or in writing. In Peru, former president Mr. Fujimori has been prosecuted and sentenced to 25 years imprisionment, for he is fully responsible for having given the Presidential instructions of a “covert war” and not having done anything to prevent human rights abuses when they were obviously being perpetrated. A full investigation has to take place in the US!

  • windy

    I made a pragmatic argument as opposed to an ideological one. Why do you then (sarcastically) suppose that I support any of the detentions or torture?

    The detentions are still going on. But you didn’t call them gratuitous, you think that prosecuting those responsible for the torture and the detentions is gratuitous, even if many of the victims remain in indefinite detention. Disgusting.