September 20, 2006

"The White House had blinked first in its standoff with the senators."

That's the NYT's reading of the "suggestion," as the White House gives up on getting specific about what the general language in the Geneva Conventions means. But there's more to the legislation than that:
Several issues appeared to remain in flux, among them whether the two sides could agree on language protecting C.I.A. officers from legal action for past interrogations and for any conducted in the future. Beyond the issue of interrogations, the two sides have also been at odds over the rights that should be granted to terrorism suspects during trials, in particular whether they should be able to see all evidence, including classified material, that a jury might use to convict them.
So there's a complex negotiation, and the question of saying what is and what is not “cruel, inhuman or degrading treatment" is a conspicuous part of it. Is this a compromise where the President gives in on the issue that people notice and feel emotional about but gets what he wants on the tedious technical issues that people ignore but that actually have more effect on the real world?

64 comments:

John Thacker said...

[T]he question of saying what is and what is not “cruel, inhuman or degrading treatment" is a conspicuous part of it.

I have to say I've never really understood why people who oppose torture are so opposed to defining it. Is "calling it as they see it" really such a good idea? It's always seemed to me that in the absence of clear rules or guidelines, a slide to abuse is inevitable.

Ann Althouse said...

I think it's disturbing to draw the line, because you're saying here's something that really is torture, and then there's something one iota different from that and you're absolutely free to go ahead and do it all you want. That actually doesn't make any sense. It disrespects the very meaning of rights to define them at a low level of generality, like a speed limit, where you can say, I drove exactly 55, so I've done nothing the slightest bit wrong.

Freder Frederson said...

I have to say I've never really understood why people who oppose torture are so opposed to defining it.

Where on earth do you get this ridiculous idea? From everything I see it is the supporters of torture, or those who constantly claim that what we do isn't torture, who refuse to define anything. I am perfectly willing to discuss specific methods and techniques. I would love to see the Army field manual codified as the legal standard for treating all detainees for all U.S. personnel and contractors.

The Military, and law enforcement, has had strictly established procedures for years on how to conduct interrogations. There is near universal agreement that coercive interrogation is counterproductive it is also corrosive of the discipline and morale of the interrogators. The new Army Field manual explictly rejects specific methods that the Bush administration apparently advocates (but of course won't specifically mention).

David said...

On the pleasure/pain circle too much pleasure equates to pain while too much pain equates to pleasure!

How are you going to define torture/pain when it is different for each of us! Further, how are you going to legislate the nuances of torture? Define pain? What kind of pain? Dull pain, sharp pain, exquisite pain?

This is typical of the current philosophy to break things down into discreet parts so they can be measured and managed. Coercion is used everyday in our society with varying degrees of success. Reclassifying coercion as torture is the same as reclassifying abortion as murder.

dklittl said...

I have to say I've never really understood why people who oppose torture are so opposed to defining it.

And I can never understand why people are pushing a bill that is CLEARLY for the purpose of us being able to torture without caliing it such. To me this is nothing more than an attempt to codify some cruel, inhuman and degrading treatment while outlawing only the most extreme practices. Again, when Iran or China captures some of our special forces and begins water-boarding, sleep-depriving and placing them in 50degree cells, what will you call that then.

Greg Tinti said...

Ann,

Isn't this more of a compromise than a blink anyway since the President might have agreed to define interrogations standards by amending the War Crimes Act, as Senators McCain, Graham, and Warner propose, rather than through new legislation?

Fenrisulven said...
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Fenrisulven said...
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Fenrisulven said...

/sorry, my cat keeps wanting to "help" me type

Again, when Iran or China captures some of our special forces and begins water-boarding, sleep-depriving and placing them in 50degree cells, what will you call that then.

Amatuers? SpecOps attend SERE school in their training. They would welcome the "tortures" you describe, in place of the real tortures that would be inflicted on them.

Ann makes a good point though - the thresholds for defining it are similar to those defining life in opposing abortion. Where do you draw the line? 3 weeks or 3 months? So even if I define sleep deprivation as "torture-lite", the principle remains the same.

OTOH, I reall a story of two attorneys walking across the courthouse. One tells the other he's filing an appeal for cruel and unusual punishment. The others asks "on what grounds?" He responds "My client has been incarcerated against his will and locked away in a cell".

monkeyboy said...

The problem woith defining torture is that it is a political no-win situation. Take waterboarding (which as pointed out, is done to our aviators and SPECOPS in training) off the table and you lose the information Khalid Mohammed provided after thrity seconds. Many of the other objections don't play well either. Can't grab a prisoner by the shirt? Is it degrading to have a prisoner interrogated by a female? If bright lights, loud noises and sleep deprivation is torture, then does Janet Reno go to jail for Waco?

Its one thing to believe that we would be better to suffer a few casulaties to preserve our diginity its another to say so right before the election.

John Thacker said...

Again, when Iran or China captures some of our special forces and begins water-boarding, sleep-depriving and placing them in 50degree cells, what will you call that then.

A vast improvement from what they currently do (including to their own citizens), and a vast improvement from the treatment that our soliders have normally faced, naturally. Why, what would you call it?

There are plenty of good reasons to not torture, but the reciprocity reason is rather unconvincing, considering what our troops have historically faced and continue to face.

Where on earth do you get this ridiculous idea? From everything I see it is the supporters of torture, or those who constantly claim that what we do isn't torture, who refuse to define anything. I am perfectly willing to discuss specific methods and techniques.

I get that "ridiculous idea" because all the supporters of the McCain Amendment and so forth consistently refuse to define what exactly is "cruel, inhuman, and degrading treatment," and because when I've brought up specific questions before, supporters of the McCain Amendment inevitable retort with "I know torture when I see it" and "I don't want to discuss it." The Amendment in no way defines what is "cruel, inhuman, and degrading treatment."

But I'm glad you're willing to discuss it, then. So, out of the list reported here which do you consider torture?

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.


It appears that the Administration has attempted to distinguish acts based on a "no permanent damage" theory, that fear of permanent damage is acceptable, but lasting injuries, internal or external, are not.

Some human rights groups have suggested that any use of female interrogators can be "degrading" based on the prisoners' personal beliefs. Others suggest that provocative clothes or behavior fall under such categories.

The Drill SGT said...
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The Drill SGT said...

Again, when Iran or China captures some of our special forces and begins water-boarding, sleep-depriving and placing them in 50degree cells, what will you call that then.

I have news for you. We have not fought an enemy in the last 90 years that did not torture at least some of our POWs, murder them, as well as make them "disappear" in the case of NK, China, North Vietnam, Pathet Lao, Viet Cong, and the USSR.

Name me an enemy that we've fought since 1918 that did obey what was put in place in 1949?

John Thacker said...

Again, when Iran or China captures some of our special forces and begins water-boarding, sleep-depriving and placing them in 50degree cells, what will you call that then.

In addition, none of this discussion has to do with fighting regular uniformed troops of other countries, including Iran and China. It has to do with illegal combatants out of uniform; the people who are cutting of the heads of prisoners (including reporters) when they aren't forcing them to convert.

John Thacker said...

It disrespects the very meaning of rights to define them at a low level of generality, like a speed limit, where you can say, I drove exactly 55, so I've done nothing the slightest bit wrong.

That's a fair point, but doesn't that get into the difference between the legislative job and the judicial/constitutional job? I'd also argue that the implementation of speed limits shows part of the problem when a bright line is not strictly enforced-- everyone speeds slightly, and then it's up to the mood of a particular police officer whether people get pulled for speeding going 10 or 15 miles over. (And of course leaving things up to discretion increases the chance that things like racism can come into play.)

I absolutely concede that there is a problem with "you can do X all you want and there's no problem, but X+1 is completely evil." It's not accurate; any drawing of the line is going to have to split hairs between distasteful and torture. (Indeed, involuntary confinement itself is an affront to human dignity, even if necessary.) But certainly a vague standard presents its own issues.

dick said...

I really have a problem with this when looked at in real time.

Assume you are a young corporal on the battlefield. Your troops are in possible danger and the man who knows the battle plans of the enemy is a prisoner of yours. What is this corporal permitted to do without being brought up on charges after the fact to save his troops? If he does not know and steps over the line then he is facing charges by those who judge after the fact. If he does not know and does not go far enough his troops are killed. Now write the regulations that tell him in no uncertain terms what he can and cannot do to save his men. Then justify what you wrote.

That is why I have a problem with this law. The senators and congress critters are sitting in Washington deefining what can be done under all kinds of conditions to get the information that could actually save the Capitol or the UN building or the White House or the Pentagon as well as the information that could save the lives of our troops and defeat the enemy. They are in the process of making it so restrictive without actually defining what they are talking about that the people on the ground have no idea what they are permitted to do or not.

Top that off with the problem that Ann mentions of cutting the limits so close that you can go far but if you take one more step you are up on charges. That leaves the man in the field in an untenable position of damned if he does and definitely damned or dead if he doesn't. Then you have all the people pontificating as to what they would do if they ever got in that situation while doing all they can to evade getting in that situation. Talk about kibitzers!!

What this reminds me of is that young Marine who was written up by Kevin Sites when he shot that Iraqi because he thought the guy had a weapon. He almost lost his freedom for that one and nobody could really tell whether he was right or not. Ramp that situation up and that is the reality behind the legislation they are talking about.

Freder Frederson said...

Assume you are a young corporal on the battlefield. Your troops are in possible danger and the man who knows the battle plans of the enemy is a prisoner of yours. What is this corporal permitted to do without being brought up on charges after the fact to save his troops?

Actually, the Army Field manual covers just this situation and contrary to what you may believe the corporal can do almost nothing other than ask the prisoner politely what the battle plans are.

This situation is exactly where the tactical/strategic torture conundrum is most stark. In a situation like this there is little doubt that torture probably is effective. A captured combatant almost certainly has valuable and time sensitive information that will save the lives of numerous soldiers. Non-coercive methods and handing over to professional interrogators just won't work because they need the information right now. The desire to torture and save lives is understandable and rational.

But think about the strategic picture. If this policy is pursued or sanctioned, the tactical advantage quickly disappears. The enemy will quickly learn that surrendering means torture and harsh treatment. Consequently, they will be less likely to surrender and much more likely to fight to the death. The ultimate result will be more casulties among friendly troops. What seemed like a rational tactical decision suddenly becomes a disasterous strategic one.

You need look no further than World War II to see this dynamic in action. Casulty rates on the Eastern Front (where absolutely no quarter was given on either side to prisoners) were ten times higher than on the Western Front. Towards the end of the war the Germans literally fought their way through the Russian lines just so they could surrender to the British and the Americans. There is no doubt that tens, if not hundreds of thousands, of both Western Allied and German, lives were saved, because we treated German captives humanely. (Of course there were isolated incidents of German POWs being shot or mistreated, but they were generally well treated and the official policy was that we strictly adhered to Geneva.)

Goesh said...

What exceptions can be made and by whom and how for the very real potential of a terrorist operative being caught and having knowledge of an imminent attack on civilians? I mean when reliable sources, kosher to all interested parties, tell us so-and-so is the link to an imminent attack which can be disrupted if he talks. What then?

It seems to me we have extended the conventions and conveniences given to common crooks to uniformed, conventional forces and now feel obligated to extend them to mass murderers who will use any means available to kill as many of us as they can. We aren't protecting the rights of some thug wanting to tunnel into the local bank at night or who has just knocked off a convenience store here. These are folks that had labs in afghanistan and manuals for developing chemical agents. I realize that people who are so dumb they had to use box cutters to kill 3,000 of us couldn't concoct any bio-chemical type weapon and get it into a major city, I just wonder about exceptions to the rule in this case.

Freder Frederson said...

What exceptions can be made and by whom and how for the very real potential of a terrorist operative being caught and having knowledge of an imminent attack on civilians? I mean when reliable sources, kosher to all interested parties, tell us so-and-so is the link to an imminent attack which can be disrupted if he talks.

Defenders of torture always want to resort to the ticking timebomb scenario. Yet, when has there ever been such a scenario? It's a good strawman because it is such a good one. But it is so rare the best way to handle it is to make torture illegal under all circumstances. If there ever is a ticking nuclear timebomb, then the interrogators can go ahead and torture the terrorists. I don't think anyone except the most hardcore human rights advocates will complain when the President pardons them for violating the law.

The Mechanical Eye said...

If this policy is pursued or sanctioned, the tactical advantage quickly disappears. The enemy will quickly learn that surrendering means torture and harsh treatment. Consequently, they will be less likely to surrender and much more likely to fight to the death.

This isn't an effective argument regarding suicide bombers who are going to fight to the death to begin with.

Cedarford said...

Ann - I think it's disturbing to draw the line, because you're saying here's something that really is torture, and then there's something one iota different from that and you're absolutely free to go ahead and do it all you want.

The problem is that if SCOTUS says the enemy has rights to habeas and to sue soldiers and agents with gleeful Leftist lawyers happy to bash our military or intel arms so. Then there is an imperative to give our soldiers and agents clear rules and guidelines to protect them from Al Qaeda and the ACLU using our courts to wage Jihad.
************

Freder I would love to see the Army field manual codified as the legal standard for treating all detainees for all U.S. personnel and contractors.

There is near universal agreement that coercive interrogation is counterproductive it is also corrosive of the discipline and morale of the interrogators.


1. The problem is in war you are just about certain to lose if you treat the enemy as wayward criminals needing a jury trial - or consider the enemy has rights - even unlawful combatants that can be legally shot under Geneva - to have the same UCMJ, Field Manual rights as our troops being processed for some crime. Terrorists are not criminals. They are enemy that use unlawful combat and disregard for all rules of war as a way to win.

2. There is no "near universal agreement" that coercive interrogation is counterproductive and corrosive to discipline and morale. That is a Lefty concoction of wishful thinking not backed by the facts of the coercive interrogations we have done in every war, starting in the Revolutionary War at Washington's and the Committee on War Intelligence (headed by Ben Franklin) orders.

Nor do our enemies lose effectiveness or discipline or suffer any great guilt over it. As the Manchurian Candidate McCain knows full well. The Vietnamese collected an intelligence windfall from our POWs through coercive interrogation that ramped up to torture, it enhanced their fighting effectiveness, and the Vietnamese are not the slightest bit regretful.
******************
David - Coercion is used everyday in our society with varying degrees of success. Reclassifying coercion as torture is the same as reclassifying abortion as murder.

Quite so. And the Left, in it's quest for terrorist rights as a way to Bush-bash, are actually saying that terrorists deserve more rights than American citizens with a near total freedom from any coercive, humiliating or degrading treatment.

My girlfriend was recently stopped at a drunk checkpoint, by a coercive police cruiser, which humiliated her by making her do the drunk walk, and degraded her by having her blow into a meter only by 1st threatening her that she would be arrested and thrown in jail and lose her car if she didn't cooperate with the query and didn't cooperate with basic ID info.

All in the name of "public safety"! Imagine that! (she had a wine, a shot of tequila and was released as "innocent")

Coercion. Degradation. Humiliation. Why is it OK for drunk traps "to keep us all safe", but not for Jihadis? Hopefully a Lefty will explain the need for terrorists to be given more consideration than cops do with citizens in certain circumstances. (Or why conditions at GITMO are mandated to be better than most us jails, with better quarters, food, and recreational opportunities. A prosecutor I know says the cons at Chino Prison would give their left nut to get transferred to a GITMO-like place)

Ann Althouse said...

Cedarford: "The problem is that if SCOTUS says the enemy has rights to habeas..."

The opinions rest on statutes. What do you think the tedious technical provisions I'm referring to in the post are about? I'm predicting the deal is that the Senators get to avoid a more precise definition of the substantive rights, but then the access to courts is constrained, so that the executive gets to decide what's included in the generality with little or no supervision from outside. Why isn't that better for the executive than a more precisely defined definition of rights left to courts to decide whether or not they have been violated?

dick said...

Freder,

Thank you. You made my point. What you essentially said is that this law will condemn our troops to the point where they might as well commit suicide since there is almost nothiing they can do that the LLL dems won't call a rehash of My Lai. Keep a prisoner up too late and you are torturing him. Shine a light in his cell and you are torturing him. Force him to exercise too much and you are torturing him.

I think that Posner was right with his statement that the Constitution is not a document for national suicide and this law should not be either.

BTW the UCMJ just says you cannot cause pain and degradation to the POW. As I said, define what is pain and degradation and while you are at it show that it is pain and degradation in the mind of all people. That is the problem. What I might call pain and degradation you would not. Who would win in that case. Depends on the political belief of the judge and that is not the position our troops should be placed in. We give our troops an immense amount of elasticity in what they can do. By comparison with most armies our men have a latitude in making decisions based on their situation that most armies do not. However, with this question of defining torture, when it comes to the point that the CIA interrogators think they have to get insurance to cover themselves from being sued, how much more is this laid on our young men and women in the field who are in danger and how much more should they be given exact limits or proximate limits for what they can do and under what circumstances. The more you let them improvise on the spot, the more chance that they will be charged by well-meaning human rights organizations.

dick said...
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Freder Frederson said...

to have the same UCMJ, Field Manual rights as our troops being processed for some crime. Terrorists are not criminals. They are enemy that use unlawful combat and disregard for all rules of war as a way to win.

I was referring to the field manual on interrogation that applies to all personnel under the control of the military (it does not distinguish between lawful combatants, terrorists, spies, common criminals, or U.S. soldiers accused of a crime). The Army (which writes the manual for the entire military) just came out with an updated manual that explicitly rejects interrogation techniques that the president is apparently advocating.

There is no "near universal agreement" that coercive interrogation is counterproductive and corrosive to discipline and morale. That is a Lefty concoction of wishful thinking not backed by the facts of the coercive interrogations we have done in every war

It is the military, not some leftist organization, that believes that coercive interrogation is counterproductive and corrosive to discipline. There were fears that the civilian advocates of torture in the Pentagon would influence the new Field Manual and soften the strict prohibition on coercive techniques that have been in it for many years. But the uniformed military prevailed and the new FM even specifically prohibits techniques like the use of dogs in interrogation and waterboarding as well as any physical contact.

What a bunch of pansies the military is. Apparently they don't believe in protecting the American people or doing what needs to be done to win this war.

Sloanasaurus said...

The issue we need to avoid is the following: If a situation arises where it was clear that a suspect terrorist had information about an attack, but the law said you could not "aggressively question" that suspect, and the President refused to authorize the agreesive questioning because of the law... an then a city was nuked, the President would be impeached. In the end, only the consequences of the inaction would matter and not the legal basis for the inaction. We only criticise the internment of the japanese, because we won the war. If the japanese had not been interned after serious debate and massive conspiracies among japanese citizens led to the demise of the western United States, FDR would have been skewerd.

The law needs to acknowledge these situations and not force leaders into illegal actions to resolve such quandries.

Sloanasaurus said...

"...It is the military, not some leftist organization, that believes that coercive interrogation is counterproductive and corrosive to discipline...."

These statements were made by different individuals generally. However, it is also the case that we know know that a great many of the terrorists we have captured only cracked when they went through waterboarding.

Freder Frederson said...

The Vietnamese collected an intelligence windfall from our POWs through coercive interrogation that ramped up to torture, it enhanced their fighting effectiveness, and the Vietnamese are not the slightest bit regretful.

Now I've heard everything. Looking to the North Vietnamese and VietCong for our moral compass.

So now you are saying it is okay to deliberately kill civilians if it serves to achieve our ultimate goal? In that case, what crime have the terrorists committed? After all, to them, civilians are legitimate targets in order to further their goals. If we claim the same right, how can we claim that they have committed a crime?

dick said...

Ann,

My problem with this is not with the executive. My problem is with the guy who is actually out in the field. While you are leaving the conflict between the courts and the executive being the main thrust, the executive may bear the final responsibility but the one actually doing the treatment deserves to know just what he can do or not do without violating the law. If you leave it too open he is left hanging out there in the breeze where he is damned if he does and damned if he doesn't. He needs the rules laid out. Otherwise he can easily do something and then some judge says he is torturing and some other judge says he is not. In either case he loses. He might end up in jail or with his reputation ruined and all because the Congress and Senate didn't lay out the guidelines.

I agree that if you make it too restrictive in your definitions then you have problems as the public attitudes change over time, but that is something where the laws can be revisited as needed. A current example is the group of laws about electronic spying etc. The laws were written when electronic devices could do just so much. Now the devices are very different and the laws really don't handle the all the differences. They need to be revisited.

The same thing goes with the question of torture. What was considered normal interrogation during even the Vietnam War is now considered torture by some elements of the population. The people who will actually be doing the interrogating need to know what is permissible and what is not and in detail. Otherwise they cannot do their jobs.

Freder Frederson said...

However, it is also the case that we know know that a great many of the terrorists we have captured only cracked when they went through waterboarding.

We do? How? What specific information was obtained using what specific methods? I must have missed that.

Please provide a link with official government documents providing official certified details. Not vague statements by the President or his sycophants.

Seven Machos said...

None of John Thacker's examples strike me as activities that should always be illegal.

Seven Machos said...

Fred -- Don't be an idiot. By their very nature, documents regarding confessions about terrorism are highly confidential and will remain so for a very long time.

You don't get to know that information. By law -- definitive law.

monkeyboy said...

"So now you are saying it is okay to deliberately kill civilians if it serves to achieve our ultimate goal?"

Does that work the other way as well? Sheik Khalid Mohammed gave up his information after 30 seconds of waterboarding, if attacks did go through because all the interrogators can do is ask nicely, then isn't that sacrificing civilians to maintain the moral high ground?

John Thacker said...

The Army (which writes the manual for the entire military) just came out with an updated manual that explicitly rejects interrogation techniques that the president is apparently advocating.

It also outlaws, IIRC, "good cop/bad cop" or threats of things not allowed under the manual, even if those threats are not carried out. That strikes me as a little extreme.

I'm fully afraid that at some point troops may decide that it's just easier to kill enemies rather than have them captured only to be released because of lack of evidence/Mirandaization.

monkeyboy said...

The information gathered from Khalid Sheik Mohhammed is listed here


KSm was waterboarded, the same procedure many of our aviators and SCECOPS guys go through in SERE school. The CIA interrogators who did it went through it first as well.

John Thacker said...

Freder Frederson:

You said that you were perfectly willing to discuss particular techniques. May I assume from your endorsement of the Army War Manual that you reject all seven of the techniques proposed by the Administration that I mentioned above? Grabbing someone's shirt or any physical contact whatsoever should be banned?

And will you answer my other questions, about "good cop/bad cop," about women interregators, etc.?

Seven Machos said...

John -- Killing people is okay, just so long as their civil rights aren't violated and they have free healthcare.

That pretty much sums up the view of much of the Left, doesn't it? At least, the view put into practice.

Goesh said...

The only practical solution would be to turn the 'ticking time bomb' folks over to other nations for interrogation. One man's ticking time bomb is only another man's 50+ killed in a market or cafe via conventional means - luv that C-4 with nails and ball bearings imbedded! What arrogance to expect civilians to die needlessly for principles designed for uniformed soldiers in times of conventional warfare. Ex post facto Presidential pardons would not be an exception to the rule - they would be mere political expediency blowing in the winds of polls and popular perception, nothing more. If I were a counter-intelligence agent, I would send my detainees to say Jordan with instructions to send a picture of the hot irons being applied to his balls to Congress and Justice Roberts, or I would simply look for other work.

monkeyboy said...

Talk about the pardons touched on something that is in the back of my mind.

Its that many of the politicians rest easy knowing that while they can get good press by outlawing many effective procedures as "torture", they expect that if there ever is a time when its required, they can count on the people out there to violate the law to do the right thing.

Of course those guys get sent to jail, but hey, a nice article in the NYT above the fold is worth it.

Garage Mahal said...

Should we now declare the US Constitution's ban on "cruel and unusual punishment" as too vague to enforce as well ?

Military law includes many terms like "dereliction of duty," "maltreatment" and "conduct unbecoming an officer" Do we need to re-define them as well?

I'm sure this draft, and the timing, (while they have the majority) has nothing to do with trying to protect civilian policymakers (themselves)retroactively from crimes already committed?

I am.

Pogo said...

Given the penchant for the left to demand that we apologize to those who wish to kill us, the only reasonable option is to make it our policy to take no prisoners at all. All enemy combatants should be killed outright.

That would end this useless handwringing.

Revenant said...

I think it's disturbing to draw the line, because you're saying here's something that really is torture, and then there's something one iota different from that and you're absolutely free to go ahead and do it all you want.

How is it any more disturbing than a law which says driving with a 0.8% BAC is illegal and driving with a 0.799999999% BAC is fine? There are plenty of areas of the law were there is only a tiny difference between "legal" and "illegal" (abortion has been mentioned). If you don't like the idea of going straight from "totally fine and unrestricted" to "completely banned", just establish various categories with tighter and tighter restrictions on them.

I drove exactly 55, so I've done nothing the slightest bit wrong.

Whether or not you did something *wrong* by driving 55 is between you and your conscience and/or deity of choice. But I don't see anything wrong with saying you didn't do anything the slightest bit *illegal*.

MadisonMan said...

I've always been told there are no stupid questions, so can I ask something I've always wondered? When one talks of an illegal combatant -- what law have they broken?

I understand an unlawful combatant is just a very clumsy term to distinguish from a lawful combatant, i.e., a soldier of a country (right?). Did illegal combatant just arise out of someone not liking the term unlawful?

By the way, my Dad was pulled over once for going 56 in a 55 zone (on an interstate in the middle of nowhere in his home state!) -- so just keep going 55 Ann!

Cedarford said...

A. Althouse - I think I get your subtle allusion to subtle changes in statute a bit clearer now. If Congress can fix and end the civilian Courts efforts seeking to open their doors for enemy combatant trials, prosecuting troops the enemy complains about to a collaborative ACLU lawyer, and desire to assist terrorists ability to launch multimillion dollar lawsuits in civilian courts against our guys in uniform, I'm all for that approach.

Just as long as the "subtle changes" ensure the troops and intelligence agents are protected from Jihadis and the ACLU Left's effort to use the American legal system to attack our guys.

Then it would be much better than statute.

Again, I just want our guys protected from Islamists that would use our legal system like airplanes, as another tool of Jihad. Whatever the means. Because the day you saw US soldiers up on charges brought by Al Qaeda terrorists is the day the mobs start to gather outside the Courts.

*************

Freder - You need look no further than World War II to see this dynamic in action. Casulty rates on the Eastern Front (where absolutely no quarter was given on either side to prisoners) were ten times higher than on the Western Front.

Bad example. The prime driver why casualty rates were so much higher on the Eastern Front was that was where all the major battles were between 1940 after Dunkirk and before D-Day in 1944!!! Not "mistreatment" by Nazis and Soviets. In real war, "mistreatment" is way down in risk perception of the average soldier or unit when industrial slaughter is the order of the day.

Another truism is that our good treatment of past enemy was only effective in holding down casualties on our side when the enemy was rational by Western standards. The Japanese, Taliban, NORKs, certain Vietnamese and Iraqi irregulars, and Al Qaeda combatants were not affected at all in their fanatical determination to fight to the last man even knowing we took prisoners of those seeking surrender.

Nor is there any credence that if we "humilate" enemy A, then 10 years later, in another war, an entirely different enemy D, somehow inclined to ordinarily be even more Geneva-compliant and more moral than us, will think back to enemy A's complaints, and decide to mistreat our guys. History of what happened elsewhere to a different foe is utterly irrelevant to how two foes consider what "tit for tat" war conduct they undertake in the present.

Indeed, the best way to ensure that US soldiers are not permitted to survive if taken prisoner by the enemy is to say "Geneva no longer applies - no more reciprocity rules - we will give your guys the absolute best internment we have to offer with lawyers and gourmet meals thrown in...even if you are merciless and follow no rules." Which means no deterrence or downside to a present enemy deciding to be barbaric - only the forelorn hope that a future enemy will foreswear being equally barbaric knowing the US is so sweet and nice they will never retaliate in kind... An insipidly stupid argument based solely on wishful thinking, not facts, military doctrine, or actual historic practice.

We know of enemy that contemplated mass killings of POWs from captured documents, including certain Nazis advocating it after the firebombing of their cities, but were deterred by the certainty that the Americans and Brits would kill German POWs in reprisal...as they were warned.
*******************

Freder, again - It is the military, not some leftist organization, that believes that coercive interrogation is counterproductive and corrosive to discipline.

No, it is only certain few members of the military. Or Vets. Which the Left loves to immunize them from being anti-military and at the same time proclaim that this or that person speaks for all Vets or somehow the whole Chain of Command.

And they are a strange bunch if they claim that every war we were ever in led to it being considered counterproductive and corrosive to discipline. (we used coercive interrogation from the day the 1st Redcoat was in our hands until the Lefty Lawyers and Euroweenies started their big revolt a few years back) I tossed the N Vietnamese in because they are most famous for blatant torturing of a large number of Americans in recent times. And because of the claims of the Manchurian Candidate, John McCain, who is leading the enemy rights rebellion, tie to the Vietnamese practices.

What the Vietnamese did worked. Worked on McCain. There was no mass outsmarting of the Vietnamese and Soviet, Chinese, Cuban advisors, much as certain POWs try to keep dignity by saying nothing of value was revealed. In less dangerous times - we gave those Vietnam POWs that "grace" of agreeing out of politeness that their bravery and wit negated any disclosure of valuable info to the enemy. Which then was transmuted by some Lefties preposterous claims of: "Torture Never Works!"

The military historical interviews with Vietnamese officials and military said the interrogations gave them critical info, enabled them to WIN along with winning the war in the media...and the interrogations caused no magical "discipline problems" or "Corrosive effects" on NVA military forces. No regrets, no "collective shame". Which I assure you will also be the case 20 years from now looking back at how the 9/11 Mastermind Khalid Sheikh Mohammed was made to spill the beans and save thousands of lives he planned on whacking on top of his 9/11 butcher's bill.

Fenrisulven said...

Freder: But it is so rare the best way to handle it is to make torture illegal under all circumstances. If there ever is a ticking nuclear timebomb, then the interrogators can go ahead and torture the terrorists. I don't think anyone except the most hardcore human rights advocates will complain when the President pardons them for violating the law.

But thats just x+1 from the other angle. If we ban sleep deprivation and humilation on the basis of principle, we can't then turn around and give a nudge/wink for waterboarding to save a city.

mikeyes said...

Just to clarify a point, being opposed to torture is not exclusively a left wing position, at least if I am an example. My opposition is based on over 20 years in the Army in both an Active and Reserve status as a physician, the long history of adherence to the Geneva convention Article 3 that has been thoughtfully and cognently taught to me in Command and General Staff School and War College, the continued adherence to these principles by all of the JAG leaders (in spite of the coercion from the administration) and my own moral code.

I see comments about the ticking time bomb scenario and statements (unverified except by those who would profit from it) that the use of techniques pioneered by regimes still considered reprehensible by the present administration should now be sanctioned.

The nitpicking over the definition of torture smacks of jesuitical thinking to justify the means by the end product. My religious upbringing and training cause me to abhor such thinking and the thought of techniques that have lead to the death of prisoners (most of whom were not captured on the battle field and a significant number of whom were later determined to not be enemy combatants) is sickening.

I realize that this is a personal and emotional response based on the teachings of my faith and my attachment to the military, but it is a sentiment shared by many in the military and many conservative persons of faith.

The UCMJ is fairly clear and serves as a guideline for all service members. To go outside of those guidelines you will need a pretty good reason. Saving your comrades may be one, but that has to be in context. The thought that everyone in custody is a suicide bomber, a mass murderer, or even a member of a radical Islamic entity is not a reason to torture them in the hopes that they will have such information, even if it were true (which it is not.)

The problem is that there are no safeguards the way the administration wants to proceed. To me, this is not only a sign of moral bankruptcy, but is indicative of the incompetence that this administration has brought to the present situation. They can't even get the torture part right. In the past, administrations have been able to either hide the fact that we used such methods or make the use of torture seem irrelevant and still hold the moral high ground. This administration can't even get that straight and instead relishes the thought that they can do whatever they want to anyone that they declare an "enemy combatant" including American citizens if I read their intentions correctly. They certainly did it to Canadian citizens on the flimsiest of pretenses without any protection of rights or investigation other than to send them to Syria for torture.

The proposal for a "torture warrant" might hold some water on paper as it does go through a fair hearing, but since this administration has chosen to ignore such legal niceties in other repects (FISA) the chances of that happening are slim.

The "slide to abuse" mentioned above has already occured not because there are unclear guidelines, but because there was a deliberate effort to thwart those guideline already in existence. Those who promulgated the flaunting of the UCMJ will never be punished (in fact they are promoted) because there is no one to make sure that will happen.

I wish I had a clever philosophical reason or could engage in counting angels in this dialogue, but I can't. My opposition to torture (and I think I know it when I see it according to UCMJ rules, anyway) is based on my faith and my training. I am not capable of holding another position and I did vote for Bush and still think that proper execution of the war is needed because we face an implacable enemy. But I have to follow my principles, too. Just because the enemy does not agree with my principles is a not reason to abandon them.

rattan said...

Being good is always counterintuitive when facing off against evil. But, it is the only way to avoid joining forces with evil.

There is no option guys. Torture is out no matter what its name. Our culture and historical experience (wars, burnings, lynchings, slavery and the inquisition) both demand it. It is really too late to fantasize about pulling nails and slapping around the other guy in the good fight.

Revenant said...

When one talks of an illegal combatant -- what law have they broken?

Well, murder's illegal. There is a body of international law excusing it under certain defined circumstances, though, and US courts generally yield to that law.

So an illegal combatant is, basically, someone running around trying to kill people, who lacks the cover that international law gives to members of organized military forces.

I understand an unlawful combatant is just a very clumsy term to distinguish from a lawful combatant, i.e., a soldier of a country (right?). Did illegal combatant just arise out of someone not liking the term unlawful?

"Unlawful" and "illegal" are synonyms, in English at least. Lawyers might use the terms differently, I don't know.

Revenant said...

Being good is always counterintuitive when facing off against evil. But, it is the only way to avoid joining forces with evil.

"Joining forces with evil"? What is this, an episode of the Super Friends?

Torturing a terrorist in order to save innocent lives may or may not be "evil", but it doesn't change what side the torturer is on. Whether or not people consider me "evil" is of trivial importance to me compared to whether or not my friends and loved ones are alive and safe. If preventing my loved ones from being murdered means brutally torturing the people who want them dead, then torturing those would-be murderers is the very epitome of "good" in my eyes.

If you're the kind of person who can sleep soundly while innocents die around you, cuddled warmly in the blanket of your sense of moral superiority, then bully for you. Me, I don't place a high value on that sort of morality; I want morality that gives results. :)

Fenrisulven said...

Torturing a terrorist in order to save innocent lives may or may not be "evil", but it doesn't change what side the torturer is on.

I agree, evil/good dichotomies don't measure up. Some of us have stained our souls in blood so that innocents could remain so. Now it appears they would deny us the necessary tools to prevent our platoon-mates from being blown up by IEDs, but expect us to risk the ICC & imprisonment when their community is in peril.

We have to find a middle ground.

JDM said...

Freder said:

"So now you are saying it is okay to deliberately kill civilians if it serves to achieve our ultimate goal?"

Well, it was kind of official policy in WWII.

To me, torture is anything causing lasting physical damage - rape, broken bones, damage to organs, etc. Nothing else should be proscribed. That is simply interrogation.

Of course, all you can ask a POW is name rank etc, as I understand it. Terrorists are not subject to that restriction.

We should not torture (as I define it) since it is inhuman. But we should recognize that sometimes we may have to.

monkeyboy said...

"They certainly did it to Canadian citizens on the flimsiest of pretenses without any protection of rights or investigation other than to send them to Syria for torture."

Assad helping us in the war on terror? probably not.

sparky said...

Another depressing thread--except for mikeyes and rattan. Principles tossed aside with fear's first whisper are nothing more than soap bubbles.

"No man is justified in doing evil on the ground of expediency."
Theodore Roosevelt, 'The Strenuous Life,' 1900.

Of course, now we don't even need expediency.

Revenant said...

mikeyes,

They certainly did it to Canadian citizens on the flimsiest of pretenses

The assurance of the Canadian government that the person had terrorist ties counts as "the flimsiest of pretenses" for believing he had terrorist ties, does it? :)

without any protection of rights or investigation other than to send them to Syria for torture."

Two questions:
(1): Could you give some more details on these supposed rights that foreigners have to not be deported from the United States?
(2): Could you explain how you know that the CIA sent Arar to Syria in order for him to be tortured? Certainly they could have guessed that he probably would be, but I don't see any reason to believe that that is WHY they sent him there. I doubt even the CIA is incompetent enough to trust Syrian information, after all.

sparky,

Principles tossed aside with fear's first whisper are nothing more than soap bubbles

You're assuming that most people ever believed that torture is always wrong. In reality most people have always been able to think of circumstances under which they'd tolerate the use of torture. Why do you think the founders bothered to write a ban on cruel and unusual punishment into the Constitution? Because they knew that people, given the freedom to do so, will cheerfully vote for cruel and unusual punishments for wrongdoers. There's a reason why prison rape is a popular subject for humor.

What "popped" after the "fear's first whisper" of thousands of Americans being brutally murdered by insane foreigners wasn't some deeply-held principle, but people's willingness to pretend they held that principle at all.

John Thacker said...

When one talks of an illegal combatant -- what law have they broken?

The "rules of war." Generally in the case of these terrorists, the offenses are things that put civilians in direct trouble:
1) Hiding amongst civilians
2) Not wearing identifying uniforms to distinguish themselves from civilians
3) Using civilians as human shields
4) Targeting civilians to induce terror

as well as a few other things, such as killing prisoners. The Geneva Conventions do define unlawful combatants.

Fenrisulven said...

And thats the irony - giving Geneva protections to those that Geneva was intended to prevent.

rattan said...

It is nice to see so many people buying into the ides that there is information to be gleaned in a hurry by torturing people. All of the definitions of torture allow wanton rape and mutilation (it is short of organ failure). The proposed rules deny standing to challenge the treatment and potentially preclude damages for wrongful torture (a result of a mistake).
All this extreme behavior in the hope of catching the perfect moment when torture may work. In reality, it takes months to catch a Khalid and there is plenty of time to deal with such plotters. Those who are not timely caught (the bombers in Madrid, London or Bombay), are unlikely to be caught by merely torturing a fraction of the citizenry with impunity.

Good old police work may have prevented the 9-11. Maybe the discussion should really only be about ensuring leads are followed up with proper warrants available. Torturing seems to be so far off the mark that it is demented that it is being pursued as a real option. This is the work of lazy management focused on PR and not real results.

Revenant said...

It is nice to see so many people buying into the ides that there is information to be gleaned in a hurry by torturing people.

It is obvious that there are situations where information can be gleaned in a hurry by torturing people -- obtaining an encryption key, for example.

In reality, it takes months to catch a Khalid and there is plenty of time to deal with such plotters.

That's like saying that since cancer treatments take months, no medical procedure can be performed in just a few minutes. Just because some intelligence-gathering activities take enormous amounts of time doesn't mean that other intelligence-gathering activities can't be done quickly.

For example, I keep a gun concealed in my house, so that it is available for self-defense but not obvious to visitors (or to people who might break in while I'm not home). If someone wanted to know where that gun was, they could spend months carefully observing me with surveillance devices and stakeouts to see if I led them to it. Or they could stick a knife under one of my fingernails, and I'd tell them in about two tenths of a second.

Garage Mahal said...

Ticking time bombs in Times Square, encryption keys....what next. I've been hearing alot of "we're at Waaaaaar" and "any evil againsts evil is justified",and it's nothing but a fig leaf in the name of national security.

We've sunk to a new level of moral turpitude, we've never indulged ourselves in it, and yet we're outsourcing torture to the most dispicable regimes. In doing so, we join Saddam Hussein and his ilk, in the mockery of law, human rights and good order, done in our name.

Torture doesn't work. Abu Zubaydah was waterboarded, and sure he did confess. To every plot imaginable, against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. Meanwhile, with each new tale, thousands of agents (wrongly informed) would run to each target.In essence, we're doing the terrorising for them.

That said, I don't think George Bush is evil. Republicans aren't bastards. We're better than this. We're better than them. Sorry for the rant

Revenant said...

I've been hearing alot of "we're at Waaaaaar"

It is a fact of law that we are at war. You can add as many extra a's to the middle of the word as you like, but it won't change the simple facts that (a) we are, in fact, at war and (b) like all human societies throughout history, our standards for acceptable behavior in wartime are different from our standards for peacetime.

We've sunk to a new level of moral turpitude, we've never indulged ourselves in it, and yet we're outsourcing torture to the most dispicable regimes.

The United States has used various forms of torture, during wartime and peacetime, for all of its history. There is nothing new here. Most of the controversial interrogation techniques pale on comparison to how ordinary criminal suspects were treated for most of our history. That obviously doesn't automatically make it right, but it does mean that all the histrionics over our "unprecedented" use of "torture" are ignorant of historical reality.

In doing so, we join Saddam Hussein and his ilk, in the mockery of law, human rights and good order, done in our name.

If you want to consider yourself the moral equalivalent of Saddam Hussein, you go right ahead. Far be it from me to stand between a man and his self-hatred. But personally, I see a world of difference between torturing an innocent person in order to promote terror, and torturing a terrorist in order to protect the innocent.

You might think all torture is morally equivalent. Personally, I've never seen a coherent and rational moral system in which the statements "killing is sometimes justified", "war is sometimes justified", and "torture is always evil and never justified" are all true.

Torture doesn't work.

Yes, it does. Does it *always* work? No. And neither does anything else.

monkeyboy said...

So we cannot do to enemy combatants what we do our own troops in training in SERE school.


I'm sure that the next of kin will be happy to know you can sleep at night.

Garage Mahal said...

So we cannot do to enemy combatants what we do our own troops in training in SERE school.

Did you know the SERE techniques were originally designed to resist Red Army interrogation tactics? To commie interrogators, truth was besides the point. Their aim was to control the prisoners will to the point of false confession, for propaganda purposes, rather than extract useful intelligence.

I'm sure that the next of kin will be happy to know you can sleep at night.

I'm sure your next kin are happy that terrorists are keeping you up at night.

What will make you feel safer?

Revenant said...

I'm sure your next kin are happy that terrorists are keeping you up at night. What will make you feel safer?

Well for starters, knowing that "gosh, are we being too mean to these terrorists" isn't one of the things being worried about by the people trying to track down and kill al Qaeda and its sympathizers. A minute spent worrying if a terrorist is feeling too much pain is a minute that could have been spent worrying about something that's actually important.

monkeyboy said...

The point is that if grabbing a shirt, bright lights and cold rooms is defined as torture, the we should probably stop treating our own people that way. After all, no one is attached to a car battery or put on the rack in SERE school.

If both A and B are torture, then why are we doing A to our aviators and SPECOPS?