Torture

Well, I think now we're going to have to make the distinction between the memos released last week and the new declassified report being released tomorrow, written about here.

Frankly, I think the only thing stopping these thugs from crossing over into unfettered Stalin territory was some semblance of U.S. law and the press. One wonders what might things have been like, or be like, in five to ten years, without a lot of major newspapers and reporters around to dig these things up.

 

One wonders what might things have been like, or be like, in five to ten years, without a lot of major newspapers and reporters around to dig these things up.

Amen. I'll have to keep this post intact for the other thread, because without newspapers and reporters around to "dig these things up" we, the public, are left with a bunch of dress and dog articles. Oh, wait...

I would agree, KW, that England and others ought to be reevaluated.

Except this isn't how it works. England, and the rest of the 372nd Reserve MP Company weren't interrogators, they were military corrections specialists. Even if Bush administration officials crafted authorization for CIA and/or DOD interrogators, someone like England would have had no business following them. In fact, under their own oaths of enlistment, they would have a duty to disobey the unlawful orders given to them. Instead, they took it upon themselves to engage in unauthorized behavior without command supervision, which lead to a breakdown of discipline and order.

Remember, the members of the 372nd weren't convicted of "torture" at their court martials, they were convicted of varying degrees of conspiracy, mistreatment, and dereliction of duty. Their own convictions were born out of their specific mission and sphere of duty. (or lack thereof, as the case may be.)

This would have been no different had an artilleryman walked over and punched an Iraqi in the face just because he saw a CIA operative engage in the same behavior. This doesn't automatically mean that the CIA operative is any more justified than the artilleryman, but it doesn't cascade with equal effect to all personnel under the law.

 

Instead, they took it upon themselves to engage in unauthorized behavior without command supervision, which lead to a breakdown of discipline and order.

Remind me, oh wise 44, where did this "behavior" originate from?

Give me a break. This was authorized and ordered by the White House. It doesn't take a genius to figure out that if these techniques had never been authorized under any circumstances that people like England wouldn't have found themselves partaking in them, regardless of whether or not they themselves should or shouldn't have been using them.

Remember, CIA officers specifically undertook the doing of those same things, and worse. They were "authorized" to mistreat and abuse prisoners, even as England and others went to prison for doing those same things because they weren't authorized to do so.

What a triumph of the law. Save your legal mumbo jumbo for another time, 44.

 

I don't know. None of the memos I've seen applied to military personnel like England. Again, this doesn't justify or excuse any authorization contained in the memos, but you just can't bring up England as an example without also acknowledging the line of authority that exists.

Or do you also think that a civilian police officer who takes it upon himself to bind and waterboard a criminal suspect should get a pass as well because Bush administration lawyers authorized it for the CIA? No, of course not, because a police officer should be aware of what his own limit of authority is. Even if that individual officer still chooses to do so, you can't reverse engineer the behavior in an attempt to deflect blame to someone far removed from the action.

You're confusing your own disdain for the previous administration and attempting to project it onto all areas you can without regards to the existing institutions or the rational limits that exist.

 

I'm not advoacting one thing or another mr44 but then, where does this leave the historical precedent of the Nuremburg trials?

I'm not saying it is or is not prudent for Obama to allow CIA officers to not be prosecuted. And the Obama administration was not around in 1945. And that the CIA did anything comparative to scale of the Nazis. And the real world is different from theory.

But regardless, IN THEORY, where the illegal act in question is variable X, does this create the possibility of a hypocracy? At what point is someone held liable? At what point of the command chain is it prudent to assign responsibility? And in not having the CIA prosecuted is Obama setting a different standard than was in place in the aftermath of WWII?

It may be possible he is not in respect to Neuremburg itself. The War criminals prosecuted at Neuremburg were done so largely because it was felt THEY were collectively the ones giving the orders. And as such not all were executed, or even imprisoned.

But then we have to look at the trials AFTER Neuremburg and ask if it's justifiable then that the lower-ranking members of the German War machine who WERE taking orders ended up getting tried, such as the people that actually ran the death camps or worked in them. Does that then create a hypocracy? Or is it only so in the eyes of the law of other nations (I'm not aware if Nazi War criminals were ever prosecuted in the US itself -- they were in Israel and certain European nations, but it may be that the US standard is only to prosecute the leaders of a given government)?

 

I'm not advoacting one thing or another mr44 but then, where does this leave the historical precedent of the Nuremburg trials?

Um, what I posted is supported by the precedent of the Nuremburg trials.

Above, KW suggested, in an attempt to further cast blame at Bush specifically, that Lyndie England and the rest of the 372nd convicted of abuses should be pardoned. Here's an excerpt of his quote:

Where are the pardons for Lynndie England and the rest of the people tried and convicted after Abu Ghraib? They were merely doing what the Bush administration had ordered. It's outrageous that they were made scapegoats for the real people in charge.
England and others just had the misfortunate of going first...

1) England "and the rest of the people" acted outside of their scope of authority, so they should have known that their actions would have gotten them in trouble. This is a different concept than holding the actual policy makers accountable, because the policy never applied to them in the first place.

England isn't a scapegoat because her own actions were a violation regardless of the memos. That's all I was telling KW-that he can't let his personal disdain spill over to every example in an attempt to cast blame.

2)The actual CIA/DOD interrogators themselves are a different story, because they engaged in the behavior authorized by the memos. Obama has said that he isn't going to pursue action against the specific interrogators, so this aspect is moot.

So it leaves the officials who crafted the authorizations. If they did so knowing that they were violating the law, then they too should be open to scrutiny. No one is above the law. It's also why I have no problem with the content of the memos being released, save for specifics that should stay secret for national security reasons.

But this is another aspect where it's dangerous to allow personal feelings to override the debate. Because in order to prosecute for a crime, it would have to be proven that the mid level officials acted in a willful or reckless manner when they crafted the authorizations. Legally, it's not enough to be disgusted at the practice of waterboarding, it would have to be proven that waterboarding was specifically prohibited by treaty and US law at the time the memos were written, and knowing this, the authors still included the practice.

Realistically, even if there is an inquiry, I'd say it's a long shot that any charges will be filed, and it's certainly not going to work it's way to the top levels like some are salivating over the prospect of.

 

I didn't literally mean that they should be pardoned, 44. I was being rhetorical.

Here's my point, which I think you may have gotten if you weren't so bogged down in what's officially authorized and for whom it's authorized for: Certain people were put on trial and convicted of doing things that were explicitly authorized and encouraged by the Bush administration, even if it wasn't for those people to be doing themselves (i.e. England and the others).

Where do you think they took their cues from? Does it not seem just a little bit suspicious that they were doing things that dovetailed what was authorized in various memos? The humiliation with animals and women are a couple things listed in the memos and England and others did just that. They may not have had a place to be doing so, but that's beside the point.

Again, some people were convicted of crimes for doing things that were explicitly authorized by the Bush administration for others to do. To say that well, you know, they were military people and had no business doing that is truly obtuse. Basically, you seem to be saying that even if CIA officers were doing precisely the same things at the same time England was, that they were legally okay because a bunch of memos that don't pass muster with the vast majority of the legal community said so. That's both ridiculous and repugnant.

The Bush administration created an atmosphere where torture and other highly debateable acts were authorized and encouraged at all levels of the government. Whether or not certain people were authorized to be doing this or that thing is, truly, beside the point.

 

Except, Zubaydah was captured in March of `02, and he was no small fish, either. He'd probably have an idea as to who was being sent where (after all, at the very least, he was a facilitator for al-Qaeda). His intelligence also led us to one of the plotters of the USS Cole attack and to KSM.

Even Obama's own DNI says the interrogation program provided valuable intelligence. Interestingly enough... that assessment was deleted in the earlier version of his memo.

Also, Marc Thiessen of the Washington Post has one other good point:

(emphasis added)

If they want transparency, let's have full transparency. On the other hand, I suspect that the Left in this country wants show trials (be it prosecution or a truth commission) as opposed to an honest debate on the issue.

 

Yes, I understand that you were being rhetorical. Or in more direct terms you were "emphasizing a point to make a point." But your concern wasn't on England, she was just the tool for your illustration, which isn't so fair either.

It's also related to why you keep throwing around the comparisons to Stalin's purges and/or Pol Pot's "year zero" massacres. While these memos are shocking own their own, I hardly think that they share the same perspective as the systemic extermination of 1.5 million people in Russia, or the elimination of more than a 4th of the entire population in Cambodia. You and I both realize why you're using such loaded language, but I'm not sure of its legitimacy.

That's why it is so important to start peeling away the facts, because they represent a neutral reference point. You can say that "Bush = Hitler" all day long, but nothing is gained from such a statement, and it isn't productive.

Today, the revelation was made of the role played by the Joint Personnel Recovery Agency (the DOD command which controls survival training) and how it was used in crafting these authorizations. Members of both the House and the Senate, George Tenet, and cabinet level officials all signed off on the authorizations, so it's difficult to cast blame in just one area here. More importantly, it seems that the goal was to find effective methods that were legally compliant. Somewhere along the way, that goal became muddled due to the lack of communication and scrutiny. As much as hindsight is 20/20, this issue really is quite complicated.

 

Um, what I posted is supported by the precedent of the Nuremburg trials.

Right, and I scknowledged the possibility. But what about the trials of what came after Neuremburg when Nazis of lesser rank began to be prosecuted? Were the people working in the death camps exceeding thier authority? If not they were prosecuted regardless. That they were seems unlikely given the broad latitudes given them by the Final Solution.

So then does that mean Obama now stands in contradiction to those cases? Or are those cases not considered precedent in the US (as I said, I don't know if any Nazi War Criminals were actually tried in the US)?

 

Why is waterboarding torture?
Why is sleep deprivation torture?
Why is slapping tourture?

Some people will say these are forms of torture and some won't, obviously the previous admin didn't.

What is the difference between an interrogation technique and torture?

These are legal questions that would actually have to be answered in a court of law. Serious prosecutions seem unlikely to me. I think they just want enough so they can put on show hearings or make a committee or some other nonsense.

It's amazing how fast people forget about the Jamie Gorelick Wall.
It looks like the Obama admin is trying to rebuild it brick by brick. And he just weakened his Presidency and the CIA.

 

Here's the definition of torture from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

 

That's entirely irrelevant. The memo you are citing as support mentions KSM's waterboarding and subsquent yielding of information about the Library Tower plot as justification for authorizing the same techniques against Zubaydah. However, since, as we've shown, the chronology is impossible (although, I suppose, you could believe the CIA is capable of time travel) this isn't really an effective argument.

Let's let Dennis Blair speak for himself, shall we?

Source

What Blair said is that in a few instance, torture produced results. That doesn't means it "works" or is a good policy. In one battle, the Zulus defeated the British in South Africa. It would be idiotic to suggest, on the basis of that one incident, that wooden spears and shields are superior to rifles as a general tactic for warfare. It's just saying that once, on that one occasion, that one thing happened to work once. Admitting that doesn't degrade the overall argument.

The volume of material produced is no real indication of anything. As I posted earlier, a Washington Post investigation revealed that while Zubaydah's waterboarding got him to make a great number of statements, almost everything he said once torture began was worthless and/or a lie. Torture doesn't give any insurance of veracity.

What does this have to do with anything? There's a very real question about the legality of the practices. Outside of the coterie that first approved the practice, I don't know of any legal analysis that concludes it's at all legal. In light of this what "fair, open, debate" is there to have? Effectiveness isn't a legal consideration. A bank robber can't argue that even though he was breaking the law, he should

 

That appears to be from the U.N., however they don't have jurisdiction over US law.

NOW, if you are talking about the U.N. or outside party going after US officials that is a different story, but as for prosecuting Bush admin officials in US courts I don't think this definition will hold much weight. The import thing to look at is what does US law consider torture, since that is what would have to be considered for prosecution in US courts.

 

There's a very real question about the legality of the practices. Outside of the coterie that first approved the practice, I don't know of any legal analysis that concludes it's at all legal.

Except I think the main issue is that people weren't really thinking about it at all.

Did you read today where Nancy Pelosi was mentioned as being one of the initial members of Congress who were shown drafts of the authorizations before they were finalized?

The 4 highest congressmen from both parties ( 2 democrats and 2 republicans) were given drafts of these memos back in 2002. None raised questions or stopped the creation of the guidelines. Who was the ranking democrat in the Senate along with Pelosi at the time? Do people now want to prosecute 4 members of Congress along with whoever else is caught in the net?

It's clear that this wasn't a case of big, bad Bush sitting back and drowning people for the fun of it. It's more that every facet of government was reacting to an issue that wasn't found in the government 101 source book sitting around the office at the time.

 

Pelosi had no say or choice in the matter. What could she have done?

Nothing at all. It never ceases to amaze how you rationalize the obvious, 44. Democrats were briefed as a formality, nothing more. Frankly, it may have been to gain the future appearance of complicity.

These things were conceived of and executed by the Bush administration. Period.

 

Competing harms - a legal defense any first-year law student ought to be able to apply.

What is worse: Waterboarding three senior al-Qeada operatives in an effort to prevent further 9/11-style attacks, OR more incidents like 9/11?

Or, to put it bluntly, how many innocent lives are the rights of an Abu Zubaydah or Khalid Sheikh Mohammed worth? 100? 3,000? 100,000?

That was what they believed was the situation - and as I said... if you want transparency, then support the release the full contents of the memos, even the parts with facts you may find inconvenient.

But I do not think Obama has any real interest in transparency - rather, that is simply what Obama's people are using in an attempt to make a flawed (at best) case for what amounts to political show trials.

 

These things were conceived of and executed by the Bush administration. Period.

Riiiight.... Then what is she elected for?

First off, what you posted makes no sense in relation to how the US government is organized. The members of the Intelligence Committee most certainly have the power to block legislation and policy like this.

Even If you truly think that members of Congress are powerless in the face of the President, at the very least, she could have gone on official record with any objections she had.

I'm not rationalizing anything away. But you also have to accept the reality of the situation, including the part that doesn't agree with your hatred and blame directed at Bush. Instead of thinking in terms of a government that was reacting on the fly to an event that was unprecedented up until then and making mistakes, you're going to cling to your "It's all Bush...It's got to be Bush's fault..." mantra, eh?

If you're out to buy apples, you have to accept that there's a whole cart-full, you just can't take the ones you want.

 

No one said it was. We've argued that, by overwhelming historical precedent, and in all likelihood sound legal interpretation, the Administration chose to do something that was fundamentally illegal. That 4 people out of the 538 in Congress, stripped of the aforementioned context, and without access to advice from legal experts on their staff, concluded as their personal opinion that the rules were sound means nothing. The law of the land is clear. If senior Justice Department officials chose to ignore that, and instead create illegitimate and indefensible legal opinions to justify what they knew was criminal behavior, they should be prosecuted. Period.

 

Then why go through a process at all?

All Obama needs to do is officially declare "Bush is bad" day, and everyone who it applies to can stand up, hoot and holler, and we can be done with it and just move on.

It's probably easiest in the long run.

If Obama is really forward thinking, he can ensure that "Bush is bad" day piggybacks on the next G20 Summit coming up in September, and everyone can have a grand old time setting fire to Starbucks everywhere.

 

Because trials are there for a reason: to hold a fair weighing of the evidence with due process and if people are then found to have done something illegal, it is then acceptable to hold them accountable, and there can be closure. Whether or not the techniques used really were torture is something for a court to decide. The court of public opinion isn't enough. You want the law to be skirted when that's exactly what these folks are accused of doing and makes others so mad?

Everyone should be accountable for their actions, including Presidents.

 

Because trials are there for a reason: to hold a fair weighing of the evidence with due process and if people are then found to have done something illegal, it is then acceptable to hold them accountable, and there can be closure. Whether or not the techniques used really were torture is something for a court to decide. The court of public opinion isn't enough. You want the law to be skirted when that's exactly what these folks are accused of doing and makes others so mad?

Everyone should be accountable for their actions, including Presidents.

Sure, that's what I said earlier. The problem that comes into play is reflected in your own opening sentence. Because some people in this forum seem to be concerned less with the "fair weighing" part.

If you also believe what you posted in your second part, then a lot more government officials could potentially be involved in this, and the current administration (any administration for that matter) has to weigh the cost-both material and immaterial- of such an undertaking in relation to simply moving forward.

 

Yes, I do think accountability is necessary, and that it needs to be done right or it's not worth anything. I also think there's a cost to no accountability, if people think they can get away with anything then they will. If officials were willfully going against the law, they need to be brought to justice. Everyone, both Americans and those around the world, needs to know that no one in this country is above the law.

 

The US is a signatory of the treaty. Treaties are American laws.

 

Actually, that's not accurate under US law.

Look up the SC decision of "Medellín v. Texas"

Taken from the decision, the Supreme Court- "reaffirmed the right of the United States to govern its affairs in accordance with the US Constitution rather than specific provisions of international treaties."

The specific case revolved around an order given by the International Court of Justice (known popularly by its slang term of the "world court," located in the Hague.) as it applied to Texas State law enforcement officials.

In a nutshell, the SC basically told the ICJ to go stick it, that the US will always hold on to its right to be its own primary jurisdiction. If the ICJ wanted to take action, it would have to go through the UN Security Council, of which the US has veto powers.

So in effect, the Supreme Court indicated that the US is immune to UN directives, unless the government voluntarily decides to comply.