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?
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:
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[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.
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.
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?
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.
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?
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.
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.
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.
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: "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?
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.
"...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.
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.
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.?
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.
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.
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.
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*.
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!
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.
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. :)
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.
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.
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.
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.
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
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.
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?
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.
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