War Crimes and the Bush administration

I think they wanted to do it regardless of legality and the memos are endless rounds of government cyoa. You see it wasn't us who did it, DOJ said we could, how were we to know? Well the DOJ was just discussing what might be legally permissible, they had no idea what CIA was doing. Well Congress was only informed of what might possibly be done, they had no idea what was happening.

Sure, but this is an opinion that could be examined, but it's not like any one of us could attribute personal motivations to anyone involved at the time.

The legal aspect takes on an importance because JF (not so much you-maybe to a lesser degree than him) continues to post definitive statements like "the procedures were already illegal under US law.." but this doesn't make any sense because then why was any of this undertaken?

Here's a link to the NY Times' copies of the initial memos from 2002 that applied to the CIA. They're 124 pages long, but even just skimming them, you'll notice a request that is repeated over and over is one that asks for legal clarification:

NY TIMES HERE

These are the same memos that were also supplied to the Congressional Intelligence Committees at the time. At no time did anyone ask "hey, we know this is illegal, but we're going to violate it anyway." At any rate this initial authorization applied to civilian intelligence agencies.

The following year, in March 2003, the Department of Defense asked for a new round of legal briefs which would apply to military interrogators, because they had to follow different authorities than the CIA, and there were questions being raised that related to the status of enemy combatants. The 2003 DOD memos comprise 85 pages.

Here's the initial request in Jan, 2003 to "establish a working group within the DOD to assess the legal, policy, and operational issues relating to the interrogation..."

DOD MEMO

Again, the focus here was that no policy existed prior to that point, so one had to be created.

And then here's the final authority that was worked out (again, it's 85 pages, but worth the read):

DOD HERE

and yet again, at no time did anyone suggest in these memos that there was established law in place. I've always asked if people had read the initial authorities, because the process is all there for everyone to see, a process that was about far from what is being now characterized as Mars is.

 

This feels like the hundrenth time I've posted this, but here it goes again.

U.S. Law on Torture:

As used in this chapter?
(1) ?torture? means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(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;
(C) the threat of imminent death; 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; and
(3) ?United States? means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.


(a) Offense.? Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.? There is jurisdiction over the activity prohibited in subsection (a) if?
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.? A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

Nothing in this chapter shall be construed as precluding the application of State or local laws on the same subject, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding.

 

JF - I've told you a million times not to exagerate.

Thanks for the link.

 

No one said there was a law in place, so there must not have been a law in place?

I'm sorry, but negative proofs? Really?

I'm consistently amazed by the conservative principle enshrined in the thought that since the government was willing to do it, it must not have been illegal.

Lets begin with it. Your legality is based on the claim that the President can declare that they're unlawful combatants and therefore the Geneva convention does not apply.

Their entire argument is predicated on not examining if they are in fact "unlawful combatants" or infact if that makes the Geneva convention not apply. With that massive hole in the foundation of their approach the entirety of the conclusion falls apart.

Quoting from the final authority "The DOJ has authorized that the 4th Geneva Convention does not apply to unlawful combatants". Well that's great, unfortunately it does. The Supreme court declared that Common article 3 of the Geneva conventions applies to all prisoners in the war on terror.

Part of common article 3 prohibits

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

So, oops.

Also, the rest their hat on the idea that the patriot act exempted Gitmo from having to worry about domestic torture laws.

But the coup de grace here is the presidential authority argument. And I do mean argument.

They even start that section "it could be argued that...". They have no elgal authority, only a legal argument they're hiding behind that the Presidential authority to run a war exempts them form having to comply with federal law.

This is a money quote here so lets ponder it a bit.

"Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander in chief authority in the President."

Yes, you read that right. Congress can't pass laws about unlawful combatants so really how could anything they do be illegal.

Ahaha

Then it goes into the necessity defense, noting there is no federal necessity statue but then having a multi page digression about how it totally applies. Oh ma this is great. tel me Mr 44 did you actually read this? How many "it could be argued"s and "the DOJ has said"s before you realized this was all an exercise in ass covering?

There is seriously a dozen pages here devoted to how you could defend yourself in a court of law being charged with torture. Other than the unitary executive, my favorite is the self defense argument. This goes that the US is defending itself against terrorists and that the president doesn't need congressional authority to do so. Torture is just part of that self defense.


OH man this is hilarious. Who said conservatives weren't funny. Why didn't they have these guys writing the half hour news hour?

 

But again, I don't know how you can take a post of mine, ignore everything contained within it, and then go attribute all sorts of strange motivations that I've never mentioned. If you only care about making snide comments all day long, there's not much left to post about.

But at least this relates to the topic:

Lets begin with it. Your legality is based on the claim that the President can declare that they're unlawful combatants and therefore the Geneva convention does not apply.

Except this is not my point. The President can't declare anything in isolation without review by separation of powers. This is how our system of government was established since its inception.

I never said the memos were light reading, or that they were mundane or non-controversial. They deal with extreme circumstances. But extreme circumstances happen all the time in the world. You both seem to be under some sort of strange perception that I agree with everything within them.

But you can't keep shifting your focus as you see fit. At first you claimed that there was a willful violation of the law, when there wasn't. Then you shifted to some point that claimed the President can do anything he wants, which he can't. I don't think anyone has ever claimed that he could.

The issue is that at any time back then, Congress could have stopped any of the "10 techniques" being examined, or questioned the President's classification, or reviewed any of the authorities presented in the memos, because everyone was asking for clarification for those very things. Neither the Senate or the House, or anyone in government did. That is, until the post 9/11 mood changed, and it became politically expedient to question those same actions.

I don't know how all the other rants about "conservatives" and over-reliance on name calling fits into the topic, so I'll just let you answer those.

 

Edit// Okay, I want you to explain this in detail, to hell with whatever huffy response you had in mind for the original post.



You admit the report is controversial. You do not agree with everything in the report.

Much of the reports argument for the legality of the program rests on the argument that the Executive can order what it likes in time of war without check by Congress.

Do you agree with this?

If you do not, how can you say that their actions were legal? Other parts of the report rely on blatant legal mistakes and factual contradictions. Do you agree with those. I'm going to cite the necessity defense and the non applicability of the Geneva convention.

IF indeed, the report is legally and factually wrong, how can you in good conscience claim there was no existing legal authority preventing torture? The simple existence of 'debate' does not constitute a lack of authority, any more than people debating if the earth is flat, the Earth is 5 centuries old, or the moon landings were a hoax.

You Mr 44 cited that report as a defense of your position. IF you do not like that then don't cite it. If you disagree with it, don't cite it. But otherwise stop presenting facts and complaining people are changing the topic when they discuss the facts you present. It's inherently dishonest.

 

Those memos make very interesting reading. I can't read the final DOD Report for some reason as everytime I try and open it my computer crashes.

Having read the memos at least, can somebody please explain to me (using small words) what the issue is? Each proposed interrogation technique is analysed in relation to the relevant section of the US Code which Jediflyer posted and each proposed interrogation technique is specifically found not to violate the statute, with the final caveat that the legal advice provides the author's "best reading of the law" in the absence of "any cases construing the statute" and "no prosecutions brought under it".

I don't live in America so if there are other (obvious to a US resident) issues that I'm missing then please feel free to point them out. Presumably, following the legal advice sought and obtained, they went ahead with the proposed techniques. Whilst I am no fan of Bush, I'm not sure what other steps his administration should have taken?

 

How about obtaining accurate legal advice?

To begin with, if you start from the very first part of the first memo you understand why the legal advice can not be trusted. The advice is based upon the facts provided, not knowledge of the acts being committed.

You have this memo talking about how waterboarding is used in sere training so it doesn't rise to certain levels, then you have the IG's report stating the waterboarding conducted by the Bush adminsitration was not the same as SERE training waterboarding.The one memo discusses the use of techniques in singular without relation to how often or with which other techniques, but that an escalation could be scene as a justifiable fear for life by the person being so treated. Another states the techniques will ahve to be sued in conjunction and with increasing severity to create results.

Perhaps one of the most inherently dishonest arguments is that intentional inflicting of harm argument. The defense provided is that as long as there are doctors present then the harm isn't intentional.

After all, the doctors will obviously tell the interrogators to stop before any illegal level of 'harm' is reached. Think about that for awhile. People pad by the people torturing you will decide if you've been tortured too much. Who says government bureaucrats can't look out for your health care!

Seriously, the second memo outlines that the techniques used in conjunction might count as torture, but the psychologists and doctors on site will prevent it from rising to that level.

I do not see how any reasonable person could read that and not udnerstand that the techniques themselves are inherently in violation of the law. Lets not misunderstand. Their position is that doing something for twenty minutes is okay. Doing it for 21 is wrong. Doing it for twenty minutes, waiting an hour then doing it again is okay.

That is not an attempt to obey the law, it's an attempt to circumvent the law, in the same way structuring is ana ttempt to circumvent the law in monetary transactions and is also illegal.

 

LOH, you mean the final link in my post doesn't work? It's from the George Washington University library. I'll see if I can find another one.

This should be the same thing from the Washington Post:

HERE

 

Well I consider myself to be a reasonable person, I'm not a Republican or a Democrat, hell I'm not even American, most people would consider me to be a warm and fuzzy bleeding heart lefty, but I can honestly say that I don't understand the techniques themselves to be "inherently in violation of the law".

For me, there are essentially two relevant factors:firstly, it appears from the wording of the 'memos' that they were obtained by the Bush adminstration specifically in relation to certain interrogation techniques which were being "proposed" as part of a "proposed increased pressure phase". On this basis, the advice is based upon facts provided simply because as that stage no acts had actually been committed. In essence, the Bush administration was seeking legal advice on its proposed program before it implemented the program. The memos go on to say that if the facts as provided deviate from the acts in practice, then the legal opinion

 

LOH, the torture statute specifically defines torture as being used "under the color of law". It would seem to me that the "legal advice" is that color of law.

 

Well traditonally the term "under color of law" refers to some legal authority or power to carry out certain actions. In this case, I would imagine the "color of law" being the law of the US which actually authorizes US personel to hold and interrogate persons such as Zubaydah in the first place. What is that law? If an interrogator tries to claim that such law gives him the right to use any interrogation techniques he wishes, then that is what would be meant by "under color of law" in section 234A of the US Code.

The legal advice is really just aimed at determing whether the proposed regime of interrogation techniques actually violates the statute on torture.

 

And they came to the conclusion that they didn't.

The intent was not to cause suffering for suffering's sake. It was to stop an attack.

And to be honest, I think Ralph Peters lays out my feelings on the matter quite well.

 

Suffering for sufferings sakes can be avodied by asking questions while you torture.

Torquemada wasn't torturing people he just wanted to find out if they were witches, or secret Jews/Muslims.

It wasn't suffering for sufferings sake, so QED it wasn't torture.

Anyone else buy that?

 

Well spoken. You break the law; you go to prison. If the President doesn't go to prison, he's above the law.

Who's 'they'?

What attack?

Oh and the guy made a mistake on the title. It should be 'Punishing War Criminals.'

 

Once again, you have obviously either not bothered to read my arguments, or you are twisting them.

And as Kimball Kinnison explained earlier - there's NO INTENT

Under American law, certain things must be intended to get a criminal conviction. You need to prove intent to commit a crime.

There's no such intent.

I am also going to reiterate something from the Ralph Peters column you obviously have not read.

When the next 9/11 happens (and Holder has all but guaranteed that another 9/11 will happen), there will be only one real way to get the intelligence community to even consider a more aggressive pose: Eric Holder will have to go in the same dock that he put the CIA in. The charges may be criminal negligence - or even murder two (under a depraved indifference theory).

Eventually, it will escalate beyond that. That has been the trend over the last 35 years.

Espaldapalabras was right: The country will be torn apart. It won't just be this issue - others (abortion, gay marriage, even the health care bill) are working to split the country in two.

 

There's no intent to break the law? Wow that's absolutely not what you said. What you said, and I will quote you because you've forgotten one post later is "The intent was not to cause suffering for suffering's sake. It was to stop an attack."

Therefore, you're claiming Torture is only causing suffering for suffering's sake.

Do you not mean the words you use? If torture is "caus(ing) suffering for suffering's sake", what other actions are not torture if used for different cause?

This is clearly wrong, both legally and morally. Certain actions are torture regardless of why they're undertaken. KK's defense is that the actor must have the intent to inflict torture, and that the "precautions" were evidence that they did not intend to inflict torture, which is an entirely separate argument from what you just made.

Mean what you say, and stop trying to co opt others arguments to prop yours up when they fall apart.

 

I have posted earlier in this thread about attacks the CIA program helped thwart.

No, they were not. That has also been explained earlier in this thread.

Are you so determined to get you vengeance for America's imagined wrongs that you want to make those who don't toe your line on this as criminals?

I find that frightening - far more so than a CIA that might waterboard a Khalid Sheikh Mohammed.

 

I think there may well be a distinction between the interrogation methods which were contemplated in those memos and the interrogation methods which were actually carried out by the CIA. If the methods used matched the methods contemplated then it is difficult to see how charges of torture could be sustained. However, if the methods used fell outside of the scope of the methods which were proposed and which were the subject of the legal advice then that is a whole different matter.

 

I would, grudgingly, agree that to the extent that they were legally informed that certain actions were not torture, it would be difficult to hold the actors responsible. However, I would add to your caveats that it's not just methods outside of their legal advice but methods in excess of the legal advice. I also want the legal advice itself looked at because I have to feel that there is a line between giving advice on what is or is not torture and giving advice on how to evade the torture laws.

 

I'm not sure I see the difference. If you give legal advice on what constitutes torture, then you are necessarily giving advice on how to evade torture laws. That's a problem with any form of prohibition. It's like tax evasion. If you give advice on what form of tax shelter does or does not violate the definition of illegal tax avoidance, then you are necessarily giving advice on how to evade tax avoidance laws.

I think your issue is how silly legal definitions of 'torture' are in the first place. It's the silliness of saying "it's OK to bend back one finger, but if you bend back two fingers then that is torture'. What's the difference? Correct me if I'm wrong. Personally, I think the minute you embark on interrogation methods which incorporate sensory deprivation or physical measures as contemplated in those memos then morally at least you have a case to answer, even if 'legally' you may be on solid ground.

For me, it's like having a rule that states it's OK to kick a guy in the balls so long as you don't cause any permanent reproductive damage. You can provide a medical report evidening a lack of permanent reproductive damage and so the law says you are alright, but at the end of the day you still kicked a guy in the balls. Just my opinion.

 

I would suggest the problem is in the language. I ask if I slap someone is that torture, and you say no, does that give me free rein to slap them as much as I want? If I ask you how many times I can slap someone before it is torture, does that show intent to not torture? I think in this context tax issues are not quite the same since built into most tax codes are explicit ways to avoid paying taxes legally. There is no explicit ruling I'm aware of that covers how many times you can slap someone before it becomes torture. While KK would suggest asking shows you don't want to torture, I would suggest asking shows you don't want to be legally held accountable for torture.

To draw a different legal comparison, if you shoot someone in the leg, it does not automatically protect you from a charge of attempted murder. If you shoot at someone and miss, you could try arguing you intended to miss. You could try arguing you hit exactly where you were aiming, but I'm not sure how well the courts would look on such an argument.

Part of the problem here is that Torture is the only definition of misconduct in prisoner abuse we're willing to accept in this debate. The question of if lesser abuse rises tot he level of torture is much easier when lesser abuse is against the law in the first place. The torture statues envision torture as an extreme, and refusing to acknowledge anything between "acceptable" and "Extreme" means arguing it wasn't extreme makes it ipso facto acceptable.

To put it another way, if there is no standard for simple abuse, it was torture, if there is a standard many cases may have simply been abuse.

I would suggest that the governments rejection of the idea of prisoner abuse is what brings its treatment to the level of torture because it's a fundamental denial of the human rights of the prisoners, which is part of what the torture ban is aimed at preventing.


I do recognize that' a bit afield of the question, but the absence of admitting any legal middle ground makes the question more difficult than it should be.

 

You mean that info he gave before being tortured?

Right... matter of opinion. One guy's traitor is another guy's hero.

Well if that's patriotism, then I'm disgusted with it.

Leaders (teachers, masters) must live by a higher standard than what they preach to their followers. When someone is above the law, it will only inspire others to do the same damn thing. The laws established within the US are not flexible, nor can they be ignored. That is why anyone who defiles them MUST be held responsible. Otherwise we might as well just forget our system of justice here and now.

 

Torture is torture. Whether that torture is justified or not is another matter. I would always say to people who oppose it "Ok, but if we ban it someone you love must die in consequence" because you know that somewhere innocent people will die as a result.

In terms of the law I always thought that the POTUS could make a presidential finding that interprets the law as he sees fit. If you were to prosecute Bush for what he did you'd have to also prosecute Obama because he has continued Bush's policy of assasinating Taliban/Al Quaeda leaders in Pakistan and US law explicitly forbids assasination (apparently 10 civilians killed for every enemy leader killed). In fact Obama has banned Bush's policy of using troops in cross border raids which means he relies entirely on Predator/Reaper strikes which entail many more civilian deaths (a Hellfire missile a LOT less discerning about who it kills than a round from an M14 sniper rifle)

Interestingly when Nixon launched his strikes into Cambodia and Laos he was met with mass protests in the street which culminated in the tragic Kent State shootings. All this despite that fact that these attacks saved the lives of 1000s of Americans and their allies, destroying NVA bases and massive arms dumps, putting pressure on the North to speed up the peace talks (a point well made in the excellent Frost vs Nixon film). When Bush and Obama do the same in Pakistan no one cares

 

Excellent point. The death penalty has the unfortunate result of being irreversible if the victim is later found to be innocent. Torture is much the same way. Seriously would you risk torturing an innocent person and have it be legal?

This is supposed to be America... aren't we above that?