December 15, 2014

"All who planned, all who implemented, all who carried out the torture should be criminally prosecuted. How else do we as a society express our outrage?"

"How else do we deter it in the future—except by criminal prosecutions?" said law professor Erwin Chemerinsky, recommending the prosecution of law professor John Yoo, who co-authored the Office of Legal Counsel memo that supported the interrogation techniques criticized as torture in Senate Intelligence Committee’s report.
The Federal Torture Act defines torture broadly, as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering…upon another person within his custody or physical control.”

Yoo [has written] “I believed that the federal law prohibiting torture allowed the CIA to use interrogation methods that did not cause injury—including, in extraordinary cases, waterboarding—because of the grave threat to the nation’s security in the months after the 9/11 attacks.” He added that he was “swayed by the fact” that he believed “the CIA would use the technique only on top Al Qaeda leaders thought to have actionable information on pending plots.”
I'm not a criminal law expert, so help me out here. This issue is specific intent, right?

170 comments:

Drago said...

Sorry, Erwin, once again we can't hear you over the beheadings of Christian children by leftist islamist heroes: http://video.foxnews.com/v/3941130944001/isis-beheads-4-young-christian-children-in-iraq/?#sp=show-clips

Achilles said...

""All who planned, all who implemented, all who carried out the torture should be criminally prosecuted. How else do we as a society express our outrage?""

I think you prog's should express your outrage by moving to Iran.

F said...

Moral posturing. And thread winner to Achilles!

traditionalguy said...

Society's outrage is an easy to manipulate politically easiest way out at all times; unless a strong man leads the decision makers into a rational policy that has planned results.

The academic witch hunters are on cue after eliminating those strong men from leadership.

General Patton would have been in jail instead of winning the Normandy Breakout and the Battle of the Bulge if these idiots had exercised the power in 1944 that they want to have today.

damikesc said...

So, making a legal justification for a policy that he feels is illegal should lead to that legal theorist being arrested?

So, when will Jeh Johnson be frog marched for justifying Obama's unsigned Executive Order for amnesty?

Hagar said...

Lawyers prosecuting another lawyer for giving bum legal advice?

Yeah, right!!!

Curious George said...

So this means we can prosecute Obama for murder?

BDNYC said...

I think you are right to point to specific intent. A prosecutor would have to show that Yoo intended that his "act" -- i.e., his legal opinion -- would somehow result in physical pain to a prisoner ... in his physical custody or control. That's another issue, isn't it?

Ridiculous. You would probably have to prove that the legal opinion was objectively unreasonable and made in bad faith, all for the purpose of facilitating torture. Good luck proving that.

What if a judge adopted Yoo's reasoning in a decision? Would the judge's opinion be an "act" that could be criminal under the statute? I think not.

tim maguire said...

By all means, let's criminalize opinions and policy differences. How could that be a fringe position when it was state policy for one of the 2 main countries in the Cold War?

Besides, I'm sure it will encourage sound policy advice if we throw people in jail for giving advice we don't like.

Gahrie said...

The first act of the next president (should he be a Republican) should be to issue a blanket pardon to anyone involved with the war on terror.

Forbes said...

The specific intent was to gather information, not permanent or severe injury, ISTM. And as it's widely known in the intelligence and special ops community that US special ops personnel undergo waterboarding in their training, it seems like a non-starter to claim terrorists have been tortured when it is part of training.

mccullough said...

So Obama should be prosecuted for continuing SERE training on our special forces?

I don't see the difference between doing this on our guys or the enemies.

This alone makes the prosecution impossible.

Not to mention the necessity defense.

damikesc said...

The first act of the next president (should he be a Republican) should be to issue a blanket pardon to anyone involved with the war on terror.

Then remove protected classification of all documents Obama generated for domestic policy and publicize ALL of them.

khesanh0802 said...

Let's forget context and show how PURE our thinking is says Chemerinsky. Fuck him, says I.

It's so easy to know what should have been done about the horse long after he has left the barn.

Bob Boyd said...

Americans aren't outraged. I would guess most Americans have mixed feelings about what was done.
And they aren't so sure about deterring this stuff in future either.

Michael K said...

"I think you prog's should express your outrage by moving to Iran."

Chemerinsky prefers Orange County but he may be looking around since law school enrollment is crashing, especially a left wing paradise like UC, Irvine where he opened the law school just as the law began to lose its luster as a career.

This is just more moral panic by the left which is losing the rape culture war.

Achilles said...

Michael K said...

"This is just more moral panic by the left which is losing the rape culture war."

Rapes are too common in the US. The feminists should move somewhere safer as well. Like Iran...

Krumhorn said...

For a law school dean to call for the criminal prosecution of a law professor at another campus of the same university is unprecedented. When demands were raised in 2008 that Berkely fire Yoo, the dean of the law school at Berkeley at the time, Christopher Edley Jr., said that, while he agreed that “Yoo offered bad ideas and even worse advice during his government service,” he believed that advocating “bad ideas” was protected by academic freedom, and such advocacy “would not warrant dismissal” from Berkeley. The only ground for dismissal, he said, was specified in the official university policy: “Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty.”

We've now come to criminalizing what lefties call "bad ideas". For the record, I don't believe that Woo was advocating "bad ideas" at all. To the contrary, 3000 human beings were incinerated and crushed as two tall buildings collapsed to the Earth after two aircraft with hundreds of passengers pranged into them and two others flew into a field and the Pentagon.

We had every reason to expect a wave of follow-on events. President Bush and Vice President Cheney did precisely what was required to prevent that.

And it worked.

Produce one person who believed, on Sept. 12, 2001, that there would not be another attack for seven years, and I'll consider downgrading Bush from "Great" to "Really Good." -- Ann Coulter

As she also said, "There's always a conflict of interest when people who don't really like America are called upon to defend it"

And so we have ass clowns such as Chemerinsky and the looselugnut libruls at The Nation who seem to embrace treason every chance it is offered.

- Krumhorn

Fernandinande said...

Much more civilized to just kill them, I guess:

Lawyers for the Obama administration, arguing for their ability to kill an American citizen without trial in Yemen, contended that the protection of US citizenship was effectively removed by a key congressional act that blessed a global war against al-Qaida."

Bob Boyd said...



Good article.
Here is kind of the polar opposite point of view (I'm not necessarily advocating it.)

"We tortured some folks." So what?
http://sofrep.com/38885/tortured-folks/

T Rellis said...

"Severe" guess everything rests on the definition of severe. If noting was severed it wasn't severe.

jr565 said...

again, the hypothetical is would you waterboard a high level ISIS member if it could prevent a journalist getting his head chopped off. Or at least gave you the info that might save him (no guarantees). It's a no brainer.

Lyssa said...

Does society, as a whole, have any outrage to express? I've gotten the impression that, while some facets of society are quite outraged, the American people as a whole are pretty unmoved by the whole thing.

There may be an argument for the fact that society *should* be outraged, but I don't think that it's proper for this person to take it upon himself to speak for society.

Clayton Hennesey said...

And so we have ass clowns such as Chemerinsky and the looselugnut libruls at The Nation who seem to embrace treason every chance it is offered.

It's not just The Nation.

The American Conservative seems to be actively cultivating such sentiments among some of its bloggers and their commenters as well, but perhaps that's a feature of the "alt-conservative" branding they've been trying to peddle recently.

Not explicitly, of course. More a "conservative enough for you to still comfortably call yourself one, yet progressively cutting edge enough to help you get that liberal girl you've been hot for". That sort of torture-sensitive.

Ann Althouse said...

"... his "act" -- i.e., his legal opinion..."

No, the acts done to the prisoners are the relevant act, and Yoo is connected to that act as part of a criminal conspiracy, as the linked article explains.

What I think is the issue is whether the acts were done for the purpose of causing severe pain or did the acts have some other purpose (even though severe pain was also a consequence of the acts (which would only be "general intent").

n.n said...

The issue is three-fold: intent, outcome, and conscience. We have not established intent, other than a claim to planned communication. We are uncertain about outcome, whether it is productivity or retribution. We accept as axiomatic that morality is relaxed when there is probable cause for self-defense.

jr565 said...

We use waterboarding for training; because it isn't torture. We couldn't use torture for training, because it would be torture. Whether or not we have consent from those being waterboarded (ahem, Robert Cook) doesn't matter. We couldn't get away with calling torture non torture, simply because it was agreed to by those going through it.
So if it's not torture when we do it to our troops it's not torture when we use it in interrogations. It may be more extreme that what you find in the army field manual, but it doesn't rise to the level of torture.

Robert Cook argued that the argument about training is not analogous because they agreed to be waterboarded. Therefore it isn't torture. Even though he said its unequivocably torture.

So then, when a journalist agrees to be waterboarded to see if its torture, how could he call it torture if he agreed to be waterboarded? See the problem there?
Chris Hitchens underwent waterboarding and then said it was torture. Under Robert Cook's argument he couldn't actually make that argument since by agreeing to it it rendered it non torture.

So lets say it is torture unequivocably. Then its torture when we do it on high level Al Qaeda members but also when we do it on Chris Hitchens. But also when we do it to our troops for SERE Training.
If we can use that method that we are defining as torture, simply to allow people to graduate, and it doesn't shock our conscience,and journalists can use that method to prove whether it's torture and we aren't arresting those who water boarded them on the spot for TORTURE, then is it going to shock my conscience if we use that same technique to save 3000 people from horrific death at the hands of terrorists? Bull shit.
Grow a pair. IF these guys were captured by ISIS, they'd have their heads chopped off. If we used renditions to ship them off to be interrogated in other countries, trust me, they are getting far worse than waterboarding.

buwaya puti said...

The Roman republic began to fall when political factions started to proscribe the others members when they were in power. There started cycles of retaliation as faction overcame faction.
Thucydides also warned about factional extremism starting such a cycle. It always ends badly.
The Obama administration has gone very uncomfortably far along this road, with the IRS scandals, though I suspect the roots are older. The Scooter Libby case was an earlier case where the bureaucratic factions conducted a purely political prosecution.
I suspect much of this nowadays is the result of neglecting classical scholarship.

William said...

History has shown that even the wisest among us have been proven wrong on one issue or another. I don't know if the histronically self righteous have been proven more or less correct by the passage of time, but, even if right, they are right in the wrong kind of way. This is Robespierre speak. He is more interested in waxing his anger than in balming the afflicted.......Is it too late to round up those aging New Dealers who managed the Japanese internment program?

Terry said...

“All who planned, all who implemented, all who carried out the torture should be criminally prosecuted. How else do we as a society express our outrage?"

Chemerinsky is supposed to be a smart guy, but I have never seen him say anything that would prove it. He dispenses bien-pensant affirmations to the ruling class of academics and media types.
In this quote he is question-begging. Society does not begin and end with the government, its approval or disapproval is not determined or demonstrated by the government.
At some times and places, society expressed its disapproval of mixed marriages by various legal and illegal means. The Federal government put a stop to it.

jr565 said...

"All who planned, all who implemented, all who carried out the torture should be criminally prosecuted".
so, we have this:

http://www.npr.org/templates/story/story.php?storyId=16012903

Should we not hold those who wateroarded Kaj Larsen to account for torture? They should be jailed. They took money and tortured a man. What about current TV. They filmed a man being tortured, and even helped pony up the cash, I'd imagine.

Would Current TV even pay someone 8000 dollars if the torture was actual torture?
Would that hold up in a court? "Your honor, we contend that sticking needles in his finger nails wasn't torture because he paid us 8,000 dollars to find out if it was torture."

IF anything, if you pay someone to waterboard you, and you then walk away and say it is torture you've just turned someone into a torturer. You've acknowledged that he tortured you for money. Now he has to live with that on his conscience for the rest of his life! That you made him a torturer for cash simply to prove a point to viewers of a tv show.

Only my guess is the guy being waterboarded had a rough time of it then went home and got up the next day and did another story. And the interrogators slept like babies.

Bob Boyd said...

Excerpts from testimony at the trial of John Yoo:

"I was ready to kill for Allah.
I was ready to die for Allah.
But this hose in my ass, I did not that coming."

"So you told them what they wanted to know?"

"I spilled my guts."

Bob Ellison said...

"Specific intent" sounds like yet another legal mind-reading farce.

Behavior matters. Intent does not. Hate crimes, various degrees of intent-to-kill, etc. are legal fictions.

If we want to ban torture, let's ban it. Water-boarding sounds pretty close to torture. Reasonable people could disagree on whether it is.

But let's at least try to find out whether it works, given that we've apparently done it several times. The answer to that question might serve to close the debate.

BarrySanders20 said...

I think you must concede that the enhanced interrogation techniques were specifically intended to inflict physical or mental suffering. That's what made them enhanced.

Not that Yoo can or should be prosecuted for his legal opinion that such techniques were not torture.

Or that Erwin speaks for "we as a society."

Clearly more humane and proper to drone them and anyone nearby under the Obama Doctrine.

Unknown said...

I like it.

(1) Torture is illegal
(2) U.S. doesn't deliberately and consciously do illegal things (presumably excludes lies during official communication's about Obamacare, State of the Union addresses, and Pelosi speeches)
(3) The U.S. conducts waterboarding for training
(4) Waterboarding cannot be illegal

Michael K said...

"I suspect much of this nowadays is the result of neglecting classical scholarship. "

How many Democrats know that Athens lost the Peloponnesian War because Alcibiades was recalled from the command after the fleet sailed to Syracuse ? He was recalled because the night before the fleet left, a series of family shrines, called "Hermes," were desecrated. Orators convinced the Athenians to recall Alcibiades for trial and the entire expedition, as well as the war, was lost.

Probably wanting to conquer Sicily, the Athenians did not seem to realize that Dorian Syracuse was a large and powerful city and as a Corinthian colony their likely enemy. The night before the expedition was to leave someone (probably enemy saboteurs) mutilated numerous statues of Hermes throughout Athens. Alcibiades was accused of profaning the Eleusinian mysteries that night, a very serious religious violation to Athenians. He wanted to answer the charges; but because Argive and Mantinean auxiliaries had joined the expedition because of Alcibiades, his trial was postponed.

The Athenians embarked for Sicily on 134 triremes with 5,100 hoplites and a total force of more than 30,000. The cautious strategy of Nicias and Alcibiades to use diplomacy and small engagements won over Naxos and Catane, which became the Athenian base. Alcibiades was recalled to stand trial for impiety and escaped enroute, going over to the Spartans. The Athenians condemned the absent Alcibiades to death, and his property was confiscated. After 300 people had been implicated in the sacrilege, the orator Andocides was given immunity and confessed to save his father and others who were not involved; the 22 he named were executed.


Human nature has not changed.

Richard Dolan said...

"An act by a person ... specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control.”

Yoo's "act" was to write an opinion, which (at most) inflicted eye strain on anyone unlucky enough to have to read it; and no one was "within his custody or physical control," including those unlucky readers. So a prosecution under this statute is a non-starter as to him.

Quite pointless to carry the analysis further. Even as to the CIA operatives who carried out EITs against people who were most definitely "within [their] custody or physical control," Team O has already passed on taking any prosecutorial action. Since Team Bush ended the use of EITs around 2006 or so, it is quite likely that the statute of limitations will have run. Haven't looked to see whether the Federal Torture Act has its own SOL, but they rarely exceed 5 or 6 years.

This "hang 'em high" stuff is just a Gruberian play on the relative intelligence of Dem voters.

garage mahal said...

(4) Waterboarding cannot be illegal

Then this was a huge mistake:

"McCain is referencing the Tokyo Trials, officially known as the International Military Tribunal for the Far East. After World War II, an international coalition convened to prosecute Japanese soldiers charged with torture. At the top of the list of techniques was water-based interrogation, known variously then as 'water cure,' 'water torture' and 'waterboarding,' according to the charging documents. It simulates drowning." Politifact went on to report, "A number of the Japanese soldiers convicted by American judges were hanged, while others received lengthy prison sentences or time in labor camps."

The Spanish Inquisition called waterboarding "tortura del agua" So where are the textual originalists when we need them?

MikeR said...

"The first act of the next president (should he be a Republican) should be to issue a blanket pardon to anyone involved with the war on terror." Dick Cheney was just asked this question on Meet the Press. He absolutely refused to accept the question: they did nothing wrong or illegal, they sought and got legal advice on what was legal, they need no pardon.
Just wait till the vegetarians take over, and prosecute all of us who ever ate meat because we should have known better.

mccullough said...

lack of consent is not an element in the torture statute. And it's not a common law affirmative defense.

Intent to cause sever physical or emotional pain of those in your custody or physical control.

So SERE training is torture. Obama should therefore be charged with conspiracy to commit torture.

BDNYC said...

The "how else" question is strange. There are many ways our society can express outrage.

Reminds me of Obama's lectures about "false choices."

Drago said...

garage: "The Spanish Inquisition called waterboarding "tortura del agua" So where are the textual originalists when we need them?"

The Japanese torturers who received death penalties received those penalties for killing US prisoners.

None of those Japanese that were executed were executed FOR waterboarding.

You are an idiot.

Only 7 of those Tokyo Trials defendants were executed and all 7 were executed because they committed war crimes and mass murder on large numbers of civilians.

Several of those executed had key roles in the execution/murder of tens and hundreds of thousands of civilians.

Once again, these are the individuals garages heart bleeds for (when he isn't praising and lauding Hamas).

Drago said...

Oh, BTW, the seventh of those Japanese executed was none other than Hideki Tojo.

Yes, garage is now comparing our personnel with Hideki Tojo.

Well played moron, well played.

damikesc said...


The Spanish Inquisition called waterboarding "tortura del agua" So where are the textual originalists when we need them?


Want to compare THAT kind of waterboarding with what we did?

You know they aren't the same, right?

Not even really that close.

Drago said...

Following garages logic, those horrible Israeli's executed Adolph Eichmann because he once jaywalked.

Drago said...

damikesc: "You know they aren't the same, right?"

No, he doesn't know. He really doesn't.

More importantly, he doesn't want to.

Mike said...

What could go wrong with a plan to prosecute former presidents and their entire administrations? Look how well it turns out for the banana republics to our south, or for other "revolutionary" governments. Leftists are insane.

Sure. What could go wrong?

BDNYC said...

Althouse has pointed out that the article mentions conspiracy liability for Yoo rather than a substantive violation of the statute. Thus, it isn't necessary that Yoo writing a legal opinion be an "act" under the statute.

So the government would have to prove an unlawful agreement between Yoo and others to violate the statute. What was the unlawful agreement?

The more I think about it, the ridiculous it becomes.

jr565 said...

garage mahal wrote:
McCain is referencing the Tokyo Trials, officially known as the International Military Tribunal for the Far East. After World War II, an international coalition convened to prosecute Japanese soldiers charged with torture. At the top of the list of techniques was water-based interrogation, known variously then as 'water cure,' 'water torture' and 'waterboarding,' according to the charging documents. It simulates drowning." Politifact went on to report, "A number of the Japanese soldiers convicted by American judges were hanged, while others received lengthy prison sentences or time in labor camps."


If you are getting trained in SERE training does the water go down your throat in a way different than it would go down KSM's throat? Or is it the same technique? Why haven't we hung any SERE trainees yet? And when journalists get waterboarded does water go down their throats differently too? Shouldn't we then be hangning anyone who wants to prove that it's torture? Or at least those who go along with proving it by actually waterboarding people.

jr565 said...

damikesc wrote:

Want to compare THAT kind of waterboarding with what we did?

In those cases they'd fill you up with water till your belly was distended. Then they'd beat you in the belly or jump on your belly till it ruptured.
The only real similarity with what we did and what they did is that it there's water involved.

DKWalser said...

We don't want to prevent it from happening in the future. We want to preen as if our moral vision is so refined that we abhor the use of such techniques even if their use might save a life; but we want them to be used (if necessary) to save our lives. We just don't want to know about it.

An example of this thinking was expressed by Sen. McCain when he argued in favor of outlawing water-boarding. He was asked, what if water-boarding were needed to prevent an attack. He replied that he expected that the CIA would violate the law if necessary to obtain the information and that the President would pardon those involved if necessary to prevent their prosecution.

No, Senator. Good men and women should not be asked to risk imprisonment just so the rest of us can pose as morally superior beings.

Monkeyboy said...

@Drago
"No, he doesn't know. He really doesn't."

Years ago I linked to the accusation against the Japanese Officer he claimed was executed for waterboarding. From the 1948 International Tribunal:

"The so-called 'water treatment' was commonly used. The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness. Pressure was then applied, sometimes by jumping upon his abdomen to force the water out. The usual practice was to revive the victim and successively repeat the process."
Sometimes they would add urine and kerosene to the mix.
He knows, he doesn't care.

jr565 said...

The left is just as mindless on the use of military tribunals to try enemy combatants. Obama said we needed to use Nuremberg as a model of how to treat captured terrorists:

“During the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court, and that taught the entire world about who we are but also the basic principles of rule of law,”


The Nuremberg trials were military tribunals. They didn't get their day in civilian court. So the libs saying we should look to Nuremberg, clearly are arguing principles based on history they don't actually know.
Ok, lets look to Nuremberg? Ok, so then we don't need to try any one in civilian courts. And such trials did not prove we were somehow wicked and didn't violate the basic principles of rule of law. THanks for making the case for military tribunals Obama, you jack ass.

iowan2 said...

Society has no outrage.

Democrats had all three branches of Govt and made a decission. The AG could have brought those charges at anytime. But the sad thing is no Democrat has no desire to even do a show trial. Forgetting about the facts that no law has been broken. And, that part about 'all who planned,all who implemented', that includes a whole host of prominent Democrats. Because they where all read in, supported, and encouraged enhanced interrogation.

jr565 said...

Monkeyboy wrote:
"The so-called 'water treatment' was commonly used. The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness. Pressure was then applied, sometimes by jumping upon his abdomen to force the water out. The usual practice was to revive the victim and successively repeat the process."
Sometimes they would add urine and kerosene to the mix.
He knows, he doesn't care.

And if we used THAT technique to train SERE cadets, no one would argue that it wasn't torture. Because you'd have soldiers with their stomachs ruptured dying or incapable of actually being soldiers anymore since their bodies were so damaged. So we couldn't say its training, when clearly it's torture.
THe very fact that the Military used it on our own soldiers for 40 years attests to the fact that we don't view it as harshly as things we wont do to our troops.

garage mahal said...

Once again, these are the individuals garages heart bleeds for

Um, you're the one defending torturers, genius.

Keep apologizing for torture, you fucking ghoul.

dwick said...

garage: Then this was a huge mistake

Yep, McCain is mistaken because it's not at all clear those Japanese soliders were executed solely for the "water cure" (or water-boarding):

"Actually, murders, massacres, and death marches head the International Military Tribunal for the Far East’s list of war crimes, and the use of water simply happens to the first item addressed in a subsequent heading titled “Torture and Other Inhumane Treatment.” Since burning, flogging, strappado, and pulling out finger and toe nails are mentioned after the “water cure,” it is far from obvious that the authors of the Tribunal’s list of war crimes were intending to rank it as more inhumane than the others."

"...McCain is most particularly and obviously in error in equating the Japanese “water cure” torture with US water-boarding.

In the “water cure,” according to the Tribunal’s war crimes description, [t]he victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness. Pressure was then applied, sometimes by jumping upon his abdomen to force the water out. The usual practice was to revive the victim and successively repeat the process.

The Tribunal does not mention it, but historically the “water cure” torture technique was often performed with sufficient brutality that internal organs would be ruptured with fatal results, or merely performed excessively to the point where the victim’s body’s electrolyte balance was fatally compromised, producing death by “water intoxication.”

In the “water-cure,” the victim’s mouth is forced open, and enormous quantities of water are poured down his throat. If he fails to swallow any of the rapidly-poured water, it goes into his lungs and he really does experience drowning.

In the US-government-authorized water-boarding of three mass murderers, a cloth or cellophane barrier was placed over the criminal’s face and water poured on it for intervals of 10 to 40 seconds. Water was specifically prevented from entering the subject’s respiratory system.

Elaborate and carefully calculated protocols had been laid down, in precisely the opposite manner of the Japanese case, 1) confining the use of such comparatively harsh interrogation techniques to a tiny number of extremely guilty terrorists likely to possess extremely vital information on major threats to the lives of many thousands of innocent American civilians, and 2) assuring that no real lasting physical or mental harm was ever actually inflicted on the three major terrorist prisoners."

JAORE said...

If I were truly interested in the specifics of the "tortura del agua" I would only consult information written prior to 2000. Historic "facts" bend too easily to personal points of view.

jr565 said...

garage mahal wrote:

Um, you're the one defending torturers, genius.

Keep apologizing for torture, you fucking ghoul.

Now I know why the left views an accidental death in Garners case as an example of premeditated murder. Becuae the left cant see nuance or degree. All they see is black killed by white cop and then that's all they need to render verdict. So too with waterboarding. No need to distinguish between actual torture involving water treatmentss by the Japanese and what we do. Nope, its TORTURE!!!!!

Freder Frederson said...

So SERE training is torture.

Whose custody or physical control are SERE trainees under? They can stop the training any time they want.

FleetUSA said...

And what about the lawyers, etc who advised BH0 it was alright to bomb US citizens without due process?

Freder Frederson said...

Are you seriously arguing that inflicting severe pain is okay as long as that is not the primary purpose of act? That is ridiculous, and precisely why Yoo should be in jail. (That and his narrowing of the definition of "severe pain")

Revenant said...

From the report, it appears that the CIA engaged in tactics beyond those Yoo was talking about. Cheney wasn't clear about whether he had specifically authorized them, either.

Hopefully there will be more follow-up on the investigation, although I wouldn't expect it given that pro-war Republicans will be chairing all the relevant committees. Ideally, we should know:

1. What EIT were used
2. On who
3. Who authorized them

Once those questions are answered, the question of whether prosecution is warranted can be answered. For example, apparently one prisoner was left chained in a concrete cell and died of hypothermia; unless there are some *really* convincing extenuating circumstances, whoever authorized that should be fired and prosecuted.

Note for the people who will reflexively bleat something about "stopping terrorism" in response to my statement, above: if you torture suspected terrorists to death, it is kind of hard to interrogate them about upcoming attacks, now, isn't it? Given that the one and *only* justification being offered for torture is that we need to get information, "making sure the subjects don't die before they give up the information" should be priority #1, yes?

lgv said...

Blogger BarrySanders20 said...
I think you must concede that the enhanced interrogation techniques were specifically intended to inflict physical or mental suffering. That's what made them enhanced.


No, I do not concede. If I take the hose towards his arse and he starts spilling his guts, it not torture. If I do it any way, then it's torture.

The intents is to get information. The faster the better, resulting in less harm.

Bob Ellison said...

But let's at least try to find out whether it works, given that we've apparently done it several times. The answer to that question might serve to close the debate.


It's hard to determine how effective it was. If the combatant had no information, there is nothing to tell. You don't if it would have worked.

Gahrie said...
The first act of the next president (should he be a Republican) should be to issue a blanket pardon to anyone involved with the war on terror.


I think this is bad policy. Pardons need to be saved for actual cases. We don't know everything that has happened.

Chemerinsky is just grandstanding for his fellow believers. His opinion is so bad, he thinks his stature will make it smell less. Not even the current administration would dare such a thing, knowing what can happen to them during the next administration.

EDH said...

Go for it, the fallout would destroy the Democrat party for a generation, both politically and criminally.

Wouldn't Clinton admin officials be even more exposed because of the prisoners that were "renditioned" to other countries specifically so they could face even worse treatment than allowed by the US?

And we'd also find out what those Democrats on the Senate Intelligence committee knew and when they knew it.

jr565 said...

Freder Frederson wrote:
"
Whose custody or physical control are SERE trainees under? They can stop the training any time they want."

I'll answer you with you: "Are you seriously arguing that inflicting severe pain is okay as long as that is not the primary purpose of act? That is ridiculous, and precisely why Yoo should be in jail."
If you are arguing that it's ok for the US Army to torture cadets then you should be in jail with Yoo.

Revenant said...

So SERE training is torture.

The key difference, from a legal standpoint, is that SERE subjects are volunteers.

garage mahal said...

And we'd also find out what those Democrats on the Senate Intelligence committee knew and when they knew it.

Great. We should know that.

Revenant said...

Wouldn't Clinton admin officials be even more exposed because of the prisoners that were "renditioned" to other countries specifically so they could face even worse treatment than allowed by the US?

"More exposed" than who, exactly? The Bush and Obama administrations did the same thing. During earlier administrations the CIA actually ran *training camps* for foreign torturers.

Bob Ellison said...

lgv said "It's hard to determine how effective it was. If the combatant had no information, there is nothing to tell. You don't if it would have worked."

This makes sense. And I think, in the absence of positive evidence that torture works, we must forswear it completely.

Pushing a prisoner in the back to get him into his cell is not torture. Water-boarding might be torture.

Revenant said...

If you are arguing that it's ok for the US Army to torture cadets then you should be in jail with Yoo.

If a professional boxer beats the crap out of you, that's felony assault. If a professional boxer beats the crap out of another boxer during a boxing match, that isn't.

Consent matters. :)

jr565 said...

as former CIA agent Robert Baer said: "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear -- never to see them again -- you send them to Egypt."
what do you think happened under Clinton when they did an extraordinary rendition. if they went to Syria or Jordan they got a lot worse than waterboarding.

Obama has continued this outsourcing of what amounts to real torture so he can pretend that we aren't getting our hands dirty.

Bob Ellison said...

It's difficult for people who have principled disagreements with Obama's policies to disagree with his principled stand against torture. It's a personal intellectual challenge.

Larry J said...

People like Chemerinsky can sleep safe at night only because rough men stand ready to do violence on their behalf.

Bob Ellison said...

*uh, "agree with his principled stand" [not "disagree"]

Revenant said...

It's difficult for people who have principled disagreements with Obama's policies to disagree with his principled stand against torture.

I'm not sure what principle "we let other countries do our torturing for us while we stick exclusively to extrajudicial assassinations" falls under. Restraint in military spending, maybe.

Achilles said...

garage mahal said...

"Um, you're the one defending torturers, genius.

Keep apologizing for torture, you fucking ghoul."

Like I said Garage. You shouldn't have to walk the same streets we walk. We have despoiled the earth and nobody as holy as you should have to walk there.

I hear the West Bank is completely free or people who torture others. You should move there and keep your soul clean.

mccullough said...

Rev,

That they are volunteers is irrelevant. Lack of consent is not an element of torture.

And Freder, the trainee is under the control of those waterboarding them. the trainees are not dunking their own heads.

mccullough said...

Rev

Lack of consent is an element of battery. It's not an element of torture.

Lack of consent is an element of rape, not of torture.

Bob Ellison said...

Maybe the solution will come with robots.

Make Robot A and Robot B commit identical acts of terrorism with help from known terrorist forces.

Then put A in a nice prison cell, treat it nicely, and ask it questions.

Torture B, and ask it questions.

Which robot confesses first? That tells us whether torture works.

Maybe you could do something similar with white mice, or bacteria.

Revenant said...

That they are volunteers is irrelevant. Lack of consent is not an element of torture.

I'm pretty sure that's incorrect. The bit about "acting under cover of law" would exclude people who rely on mutual consent.

This is a moot point, anyway. The CIA "interrogated" people to the point where they died. Arguing that this is not worse than SERE training is intellectually dishonest.

Achilles said...

Freder Frederson said...
"Are you seriously arguing that inflicting severe pain is okay as long as that is not the primary purpose of act? That is ridiculous, and precisely why Yoo should be in jail. (That and his narrowing of the definition of "severe pain")"

No. I am seriously arguing that inflicting serious pain is OK. Others don't like that and that is fine so we went with water boarding instead.

It sucks being water boarded, but if you are hanging your hat on turning us into criminals because we water boarded people you are going to lose. It is not real torture. 59 hours of sleep deprivation is cookies and cake compared to some of our training. They would leave us out there in freezing temperatures until someone dropped from hypothermia. I still don't have hot or cold feeling in my fingers, hands or feet.

I am also seriously arguing that it is never a zero sum game like you wish existed. If you people succeed in weakening us more of you will die.

And you will be responsible for those deaths. We notice people like you. I hope you get to live with your friends soon.

jr565 said...

There are things in the army field manual that would be crimes if done out of the context of interrogation. I don't know too many people who want to be interrogated ISO g any method. So then don't really see how relevant consent is to whether something is defined as torture. If I kept someone against their will in a cell as a civilian I could be charged with all sorts of crimes. If we're talking about enemy combatants we're allowed to detain for the duration of hostilities. Whether they consented or not.

And even if soldiers do consent I doubt the courts would allow the behavior if they truly thought it was torture. If you get people to agree to be executed by having their balls chopped off and shoved down their throats (say we pay their families a million dollars doe dispatching them that way) the courts would say when if their is consent it would not be allowed because it's cruel and unusual punishment.
If the torture of sere cadets rise to actual torture the army couldn't get a way with "we're just training them" even if those undergoing the actual torture was sayi. "Thank you sir may I have another"

mccullough said...

Rev

Your legal interpretation is wrong. Waterboarding by the military is torture, whether or not someone dies from it. It is torture, whether or not someone consents.

Yet the military, with full support from the President and full knowledge of the Congress and the public continues to torture SERE trainees.

The point is that no one gives a shit about it and so it is not a big deal.

The Drill SGT said...

Revenant said...
So SERE training is torture.

The key difference, from a legal standpoint, is that SERE subjects are volunteers.


At some level, the consent is coerced and thus isn't actually freely given.

Been there done that, got the wet T shirt.

The cadre (and fellow students) put large amounts of pressure on SERE trainees to else additional mass and individual activities, as well as potential course failure. Like fraternity hazings, yeah, they are all volunteers yet aren't...

buster said...

Ann Althouse said:

"What I think is the issue is whether the acts were done for the purpose of causing severe pain or did the acts have some other purpose (even though severe pain was also a consequence of the acts (which would only be 'general intent)."

The doctrine of double effect, closely associated with Thomas Aquinas, the medieval philosopher. It holds that it is morally justifiable to perform an act that one knows will have morally bad consequences if one's intent in performing the act ("specific intent" in legalese) is to bring about a morally good state of affairs whose goodness outweighs the badness caused by the act.

Revenant said...

At some level, the consent is coerced and thus isn't actually freely given.

We have a volunteer military, last I checked. I'm not sure if someone can be ordered to go through SERE (I believe they can), but they voluntarily subjected themselves to the orders.

jr565 said...

Could we have live gladiator events where people actually kill each other like gladiators if all the people involved are willing volunteers? Even if we got consent we still wouldn't allow it. So too with torture in the military. They are not going to allow torture of servicemn even if they consent to it and certainly not on the grounds that it's just training. we allow water boarding in Sere trainin because it falls short of torture but it's about as far as we can go without using torture while giving those we are trying to trsin a feeling of what they might experience. Since everyone breaks under water boarding it also works as an example of techniques we can use that will get people to break without requiring us to say attach electrodes to their balls and turn up the juice

Revenant said...

Your legal interpretation is wrong. Waterboarding by the military is torture, whether or not someone dies from it.

Do you have an actual argument to back up that claim, or are you just going to stick to the anonymous proclamation thing? If consent doesn't matter, why was the bit about "cover of law" even included?

rhhardin said...

Listen to Yoo and Epstein over at ricochet.com every couple of weeks Law Talk.

He doesn't sound like a criminal.

Also I'm not sure about outrage. Is this guy aware that it comes from outre, beyond what is proper?

Made into a noun with -age, English notices "rage" and thinks : what is beyond what is proper deserves rage. The word itself says so.

This doctrine was so useful that the word was reimported back into French, where it works overtime.

You can still distinguish the two meanings, one for the offense and one for the reaction, but the point of the word is to combine them as if there's no question about the connection.

Revenant said...

Could we have live gladiator events where people actually kill each other like gladiators if all the people involved are willing volunteers?

Unlike torture, homicide is usually illegal regardless of whether or not the person consented to be killed. That's how Jack Kevorkian went to prison.

mccullough said...

Rev

It's color of law, not cover of law. Acting under color of law means you work for he government. So the statute doesn't apply to private actors who torture people.

I've explained the elements of the crime to you. Don't know what else I can do. But you are embarrassing yourself since you are adding elements to the crime (lack of consent) and don't know what others mean. Google acting under color of law. It's a well understood legal term.

jr565 said...

Matt Damon has a big big up his butt about waterboarding. So in the Bourne movie the worst thing he evil corporation does to him
To show they are evil is waterboard him. Oh my god, they treated him no bettwr than a soldier going through training. If they were really evil water boarding would be the least of his worries. If Bourne were captured by ISIS they wouldn't have doctors monitoring him to make are he's not being injured. Rather, a guy with a British accent would be standing over him while sawing his head off with a small knife as he screamed in agony. and of Bourne were trying to defend his girlfriend from torture and found someone who knew where it would happen hed do a lot more than waterboard the guy . He'd apply as much pressure as necessary to get the guy to talk. Suddenly though Bourne is this liberal who gets squeamish about waterboarding. Please!

Revenant said...

It's color of law, not cover of law.

Sorry, typo. :)

Acting under color of law means you work for he government.

Um, no, that's not what it means at all. It means you're claiming the legal authority to perform the action in question. If both parties consent, legal authority doesn't even enter into it.

But you are embarrassing yourself since you are adding elements to the crime (lack of consent) and don't know what others mean.

Thanks for the laugh.

jr565 said...

Revenant wrote:
It means you're claiming the legal authority to perform the action in question. If both parties consent, legal authority doesn't even enter into it.

What If one party doesn't consent? Government still has the legal authority to interrogate terrorists.

Achilles said...

Revenant said...
That they are volunteers is irrelevant. Lack of consent is not an element of torture.

"I'm pretty sure that's incorrect. The bit about "acting under cover of law" would exclude people who rely on mutual consent.

This is a moot point, anyway. The CIA "interrogated" people to the point where they died. Arguing that this is not worse than SERE training is intellectually dishonest."

We have also shot people until they are dead. Dropped bombs on them until they are dead. It is sad, but in a way that makes us happy. =D

These people dress in civilian attire, hide behind women and children, and in general commit the war crimes the Geneva Conventions were intended to stop. They beat their women and treat them like property. They stone adulterers to death, behead people for being muslim, strap bombs to kids and send them to busy markets, and in general act like barbarians.

There should be zero tolerance for this kind of activity. Not having a gun shaped pop-tart kind of zero tolerance. Real zero tolerance. If you want this kind of barbarity to end you have to announce to the world what will happen to you when you are caught. Right now you and the progs, who I hold separate from, are making it so this kind of barbarism can continue. In my opinion these people should be skinned alive, burned to death, and buried wrapped in pig skin. That's just me.

There are actual rape cultures out there. Funny how the only rape culture the prog's are against is illusory and they want to throw people who fight real rape cultures in jail.

Jupiter said...

It seems to me that burning an enemy pilot to death in his cockpit, or burying several hundred soldiers alive with armored bulldozers, is considerably more awful than dumping some water up someone's nose. No one has suggested that those actions are criminal, or require an expression of societal outrage. War is Hell.

The issue then, is not the suffering we may cause to those who attack us. The issue is what we do to ourselves, when we use such means. And that depends upon the ends to which we use them. To use them simply as punishment for attacking us, as, for example, the North Vietnamese did to John McCain, would brand us, in others' minds and our own, as barbaric savages. And we rightly fear where such things will stop, once they are allowed to begin. It appears that the Bush Administration approached these matters with a good deal of caution, given the provocations and fears with which they had to contend.

In any case, I think it is fairly clear that the American people are a good deal less outraged about the matter than Professor Chemerinsky. Thank you, Professor, but I will express my outrage without your guidance. Still, Garage has a point, in his stopped-clock fashion. The talking points he deploys are crafted according to Alinsky's rules, and demand that we live up to our own priciples. We should not be eager to torture. We should approach it with repugnance. And we should ask ourselves whether it was really needed. But that does not mean the answer must always be "No".


Revenant said...

I think it is telling that the CIA's defenders are focusing exclusively on waterboarding. So far as I can tell, their reasoning is that that's the worst thing the CIA did, so if they can just establish that waterboarding isn't so bad, that means there's nothing wrong here.

Except, of course, the CIA did far worse than waterboarding. For example, they stripped a man naked from the waist down and shackled him to a 36-degree concrete floor until he died of hypothermia. That was probably torture, definitely homicide, and equally definitely not helpful in getting information out of him.

Anybody who actually favors the use of EIT to get information on terrorism plots -- as opposed to just favoring EIT because the idea of torturing suspected terrorists is pleasing -- should be outraged by the CIA's behavior in that, and other, cases.

mccullough said...

Revenant

You are completely full of shit. Please cite any legal decision that supports your idiosyncratic interpretation of color of law. There isn't one.

You are starting to sound like Crack with your solipsistic bullshit

Revenant said...

We have also shot people until they are dead. Dropped bombs on them until they are dead.

The truly funny part about all this is remembering how many of the people defending the CIA whined themselves inside-out when Obama announced his executive amnesty.

"He's breaking the law!"

"It is unprecedented!"

Who knew that Obama could just say "well, the military shoots people, and amnesty isn't as bad as killing".

mccullough said...

Thanks Rev for your moral superiority.

Why aren't you outraged at SERE training?

Revenant said...

You are completely full of shit. Please cite any legal decision that supports your idiosyncratic interpretation of color of law.

From law.com:

"the appearance of an act being performed based upon legal right or enforcement of statute, when in reality no such right exist"

This is what I paraphrased as "claiming the legal authority to perform the act in question". I'm not sure where you pulled "acting under color of law means you work for he government" from.

If you consent to something, it isn't done to you under claimed governmental authority; it is done to you because you said "ok". For example, if a cop barges into your house and says he's going to look around because he's a cop and cops can search anything they please, he's acting under color of law and can (in theory) be disciplined or prosecuted for it. If he comes into your house and looks around because you said "hey, feel free to search my house", he cannot be disciplined or prosecuted because he isn't acting under color of law. He's acting under your consent.

I can't really dumb it down for you any more than that.

n.n said...

What is the probable cause to justify an "executive amnesty"? Was it that Obama created a material incentive to facilitate an invasion that would displace and replace Americans and legal immigrants?

Also, since you are pro-choice, as is Obama, what is the defense for committing premeditated murder of wholly innocent human lives without cause? Not only does a pro-choice policy rationalize committing premeditated murder, but it actually normalizes it for trivial reasons. Perhaps you would prefer that a pro-choice policy be applied to lethal conflicts.

Rusty said...

You know who else was filled with righteous moral certainty?
The followers of Hitler, Stalin, PolPot, Mao.

A little moral ambiguity is sometimes called for.

Achilles said...

Revenant said...
We have also shot people until they are dead. Dropped bombs on them until they are dead.

"The truly funny part about all this is remembering how many of the people defending the CIA whined themselves inside-out when Obama announced his executive amnesty"

Please elaborate on your feelings here. I like to get you people on the record as to how you feel about what we do.

1. Are you saying what we did was illegal?

2. Do you think we should go to jail?

3. Do you think the Geneva Convention provides protection to any of the islamists we are fighting?

4. Do you think one or more of our lives is worth losing to make you feel better about how these people are treated?

Before I got out but after Obama was elected ROE's were changed and policies on detaining enemy combatants were changed. We caught the same guy 3 times on my last deployment in places that were doing bad things, but had to release him. People died on some of those missions recapturing people we should have shot on the spot the first time.

Does that make you feel better?

Paul said...

So... shall they arrest Pelosi, Reid, Boxer, etc????

No? I mean Congress voted for it.

I tell you, bleeding heart liberals will be the death of this country cause they will NOT defend it.

They will die self-righteous on their cross, And take us with them.

geokstr said...

"How else do we deter it in the future—except by criminal prosecutions?" said law professor Erwin Chemerinsky...

Funny, lefties don't ever use that argument when talking about law violations that they like, such as illegal immigration, or politicizing federal agencies (IRS, EPA, et al).

mccullough said...

Rev

The cop is acting under color of law when he's on duty even if exceeds his authority or even if someone consents to a search. If a police officer commits an unlawful search while on duty (or if off duty he shows his badge) he is acting under color of law. Acting under color of law has nothing to do with whether or not a government agent is acting lawfully.

Under color of law means you are an agent of the government on government time (or if not on government time you use apparent authority derived from your government position) That's it. It is not a difficult concept and is well established.

The statute has this element because it is regulating government agents and not private persons. If you waterboard Crack, you have not violated this statute.





Kohath said...

Police and prisons exist to protect society from predators and to keep the peace when there's a dispute. They're not about your feelings.

If you think they're about your feelings, you're no different than any dictator or strongman who has his enemies threatened, arrested, or killed.

jr565 said...

Heres' Chuck Shumer back before the dems pretened like they weren't pushing for enhanced interrogation:

“There are times when we all get into high dudgeon” on this matter, Schumer said, but that we “ought to be reasonable about this.” He then added this:

I think there are probably very few people in this [Congressional hearing] room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake. Take the hypothetical: if we knew that there was a nuclear bomb hidden in an American city and we believe that some kind of torture, fairly severe maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most Senators, maybe all, would do what you have to do. So it’s easy to sit back in the armchair and say that torture can never be used. But when you’re in the fox hole, it’s a very different deal. And I respect, I think we all respect the fact that the President’s in the fox-hole every day. So he can hardly be blamed for asking you, or his White House counsel or the Department of Defense, to figure out when it comes to torture, what the law allows and when the law allows it, and what there is permission to do.
“We certainly don’t want torture to be used willy-nilly… But we also don’t want the situation like I mentioned in Chicago to preclude it.”
HE does have a point. Shouldn't Erwin then go after him too? Only I would argue that he's wrong on not wanting torture to be used willy nilly. THe argument would be what could we do that falls short of torture that could prevent the ticking time bomb scenario. He seems to be suggesting we go further than enhanced interrogations.

Revenant said...

Thanks Rev for your moral superiority. Why aren't you outraged at SERE training?

What an interesting thread you seem to be reading. Apparently alternate-universe me is making some kind of impassioned argument against the immorality of torture. Back here in this world, I'm just pointing out that killing the person you are supposed to be interrogating is both illegal and counterproductive.

If you read my statements and think "Rev's trying to make me feel guilty about torture", maybe you ought to reflect on why you feel that way. Personally, I supported use of EIT, and I'm not happy with the results I'm seeing.

Kyzernick said...

I really enjoy reading the beatdowns directed at Garage, ARM, Revenant, etc, in these comment sections. I mostly just lurk, but I have my own opinions on the matter.

Terrorists . . . screw 'em.

If it came down to the wire, and I believed I could save innocent lives by waterboarding a confirmed enemy combatant, I would do it in a heartbeat. Actually, being honest with myself, I'd do worse if needed. I'm not a trained and experienced interrogator. But if I was in a "Taken" situation (ala the Liam Neeson flick), with someone holding my wife/family hostage, and I had managed to subdue and capture a known associate of the hostage-takers, I'd hesitate not a moment in plugging in the soldering iron and breaking out a pair of pliers. Not a single moment.

This is an oftentimes ugly and dangerous world we live in. Forgetting that reality has gotten many innocent people (and naive people) killed for no good reason.

mccullough said...

Paul,

Under Chemerinsky's theory, Pelosi, Goss, and Rockefeller should all be charged with conspiracy to commit torture.

It doesn't look like any other congress members could be. They were specifically briefed on the EIT program and didn't object. Rockefeller said to use it more often.

jr565 said...

Revenant wrote:
What an interesting thread you seem to be reading. Apparently alternate-universe me is making some kind of impassioned argument against the immorality of torture. Back here in this world, I'm just pointing out that killing the person you are supposed to be interrogating is both illegal and counterproductive.

was letting someone die of hyperthermia part of enhanced interrogation techniques? If it was done, I doubt it was the intended result.

Revenant said...

So... shall they arrest Pelosi, Reid, Boxer, etc???? No? I mean Congress voted for it.

I'd pick "the Constitution forbids it" as my personal favorite reason for not doing that.

jr565 said...

The constitution doesn't grant enemy combatants the rights of habeus corpus.

Dan Hossley said...

The Holder Justice Department reviewed these cases and found no basis for prosecution. Look, if the Obama administration won't go after so-called abuses by the Bush administration, I think we can consider it "case closed".

Revenant said...

was letting someone die of hyperthermia part of enhanced interrogation techniques? If it was done, I doubt it was the intended result.

That's kind of my point. They tortured someone to death. If that was on purpose, I'd like to know why. If it was accidental, I'd like to know why nobody involved seems to have been fired or prosecuted for the fuck-up.

Apparently the guy responsible was commended for good performance and promoted. I wouldn't take that as evidence that the powers-that-be wanted people killed, though; the federal government has a long history of rewarding and promoting incompetent managers.

Kyzernick said...

^ What Dan Hossley said. That pretty much sums it all up.

buwaya puti said...

The water torture used by the Inquisition (at least at certain times and in certain places) was called colloquially the toca, officially the procedure would have been called an interrogatorio, not "tortura", and it was intended to be humane. And it was indeed very similar to waterboarding. All the methods used by the Inquisition were humane and enlightened by the standards of the day, as they were intended to be survivable without permanent injury nor were they permitted to draw blood. English judicial torture of the time was much more brutal and often fatal - look up peine fort et dur. And the Inquisition rarely used torture in fact, by the standards of the day, and only for questioning, not punishment, usually a single very short session per case if done at all. The legend of the Spanish Inquisition was part of the Protestant "leyenda negra", as Spanish historians call this Protestant propaganda campaign.
Whatever ones opinion of the purpose of the institution, the Spanish Inquisition was a remarkable exercise in "due process" for its time, with a minimum of arbitrariness, indiscipline or corruption.

Achilles said...

Revenant said...
Thanks Rev for your moral superiority. Why aren't you outraged at SERE training?

"What an interesting thread you seem to be reading. Apparently alternate-universe me is making some kind of impassioned argument against the immorality of torture. Back here in this world, I'm just pointing out that killing the person you are supposed to be interrogating is both illegal and counterproductive."

If you read my statements and think "Rev's trying to make me feel guilty about torture", maybe you ought to reflect on why you feel that way. Personally, I supported use of EIT, and I'm not happy with the results I'm seeing."

They made the results look as bad as possible and highlighted things that may or may not have happened. I guarantee actionable intelligence has been gained. We were acting on some of it. This is a political stunt being pulled by enemies of freedom.

Don't fall for it.

And these people we are fighting deserve to die painfully. People shouldn't kid themselves about their nature. Like the guy that circled his kids up around the front door and took off out the back when we came for him. Or the woman who didn't tell us about her baby inside the house before we sent the dog in. A huge number of the women had black eyes.

Revenant said...

Look, if the Obama administration won't go after so-called abuses by the Bush administration, I think we can consider it "case closed".

You've confused enlightened self-interest with a nobler motive. :)

Obama, Holder, and the rest of the current crew have all done things that leave them vulnerable to prosecution, just like members of prior administrations have. If they go after ex-Bush people, they're guaranteeing that they themselves will be under indictment in the near future when a Republican administration takes over.

Achilles said...

Revenant said...
was letting someone die of hyperthermia part of enhanced interrogation techniques? If it was done, I doubt it was the intended result.

"That's kind of my point. They tortured someone to death. If that was on purpose, I'd like to know why. If it was accidental, I'd like to know why nobody involved seems to have been fired or prosecuted for the fuck-up."

If they made it to the point where they were being chained to cold floors they were high up. We had entire target lines that didn't have a single person that would be treated like this. The number of people interrogated like that was vanishingly small. I guarantee that guy was a mass murderer and complete scumbag and freezing to death on a cold floor was too good for him.

The only screw up would be if we didn't get everything out of him and he died too soon.

Jason said...

The argument that the waterboarding of SERE school students is ok and the waterboarding of known Al Qaeda leaders is not ok because the SERE school students volunteered is stupid.

Last I checked, the Al Qaeda leadership all volunteered for their jobs, too.

Revenant said...

I guarantee that guy was a mass murderer and complete scumbag and freezing to death on a cold floor was too good for him.

Dick Cheney conceded that the guy was a case of mistaken identity.

Revenant said...

Last I checked, the Al Qaeda leadership all volunteered for their jobs, too.

That's fascinating. Now comes the part where you prove the people being tortured are actually in Al Qaeda.

Hint: not even the government claims that all the people who were tortured were actually terrorists.

jr565 said...

Revenant wrote:

That's fascinating. Now comes the part where you prove the people being tortured are actually in Al Qaeda.

Hint: not even the government claims that all the people who were tortured were actually terrorists.

How are you saying we should "prove" they are terrorists? In a court of law? INnocent till proven guilty? We are talking about terrorists, not common criminals.
But, in the case of our intel. We know who the big dogs in Al Qaeda are, or were. So, lets stick to those. I'll freely grant you that people shouldn't use enhanced interrogation techniques on some low level shmo who no one thinks is in Al Qaeda. But how about a KSM. We KNOW he was involved in the the planning of 9/11, and if anyone in Al Qaeda knows about future 9/11's it will be him. So, lets concentrate on using enhanced interrogations on high level targets where ticking time bomb scenarios are realistic. Can we waterboard them?

jr565 said...

Revenant wrote:
That's fascinating. Now comes the part where you prove the people being tortured are actually in Al Qaeda.

Hint: not even the government claims that all the people who were tortured were actually terrorists.

If these guys who volunteered to fight jihad in Afghanistan are picked up on the battlefield by people other than the US they know that the treatment they receive is going to be far worse. Its a given that if you are fighting and get captured you are going to be interrogated. Hopefully not tortured too. But even the good guys need to interrogate you if only to determine whether you are a low level shmo or some top dog who got nabbed in the fighting. We've let a lot of people go who went back to the jihad.

THis does't mean that you immediately go to the enhanced interrogation. That is used only for extraordinary circumstances or extraordinary targets. And I don't think Bush or Cheney felt it should be used on every jihadi that wound up in Gitmo.

jr565 said...

In any war zone there are going to be innocent people who get put into the line of fire and wind up in a prison somewhere. And similarly there will be people who are in prison somewhere who belong there but are let out because we don't have enough info to hold them, and they then go back to the battlefield and kill more americans. Both scenarios can happen in war. Which is why its generally not a good place to be.
Hell, even in civil society the wrong guy gets put in jail, or the wrong guy is found innocent (or dies while cops are trying to arrest him for selling loosies). Shit happens.

I feel bad for any innocent people who die in war, but war is war. If Obama dropped a drone he might blow up some innocent people who get maimed or have all their kids die in the blast. Because he was aiming for the head Al Qaeda guy in the next room over.

Michael K said...

garage said:

"The Spanish Inquisition called waterboarding "tortura del agua" So where are the textual originalists when we need them?"

Does garage have a brain ? Would someone please provide evidence ? A certificate from a reading class would help.

Michael said...

Garage

You are a student of the Tribunals!! And your studies on the methods of coercion used have led you to conclude that the water cure was the most egregious?

Worse than impalment, worse than the rack.

In high school you do not learn about The Pear of Anguish do you?

You display a spectacular lack of perspective. Go on the World Wide Web a d look up torture in the Inquisiition. You will learn more than Salon will tell you about torture torture. Look up the Judas Cradle.

Revenant said...

How are you saying we should "prove" they are terrorists? In a court of law? INnocent till proven guilty? We are talking about terrorists, not common criminals.

Ask the people saying "we're allowed to torture them because they're in Al Qaeda" how they intend to prove the people are in Al Qaeda.

So far as I can tell, the standard of proof being used is "the White House said so". Anyone who thinks that's an acceptable standard for anything has obviously been in a coma since January of 2009.

Jason said...

That's fascinating. Now comes the part where you prove the people being tortured are actually in Al Qaeda.

Prove to whom, dummy?

This isn't a fucking judicial proceeding.

Jason said...

Well, tell Al Qaeda to send a lawyer.

Michael K said...

"Keep apologizing for torture, you fucking ghoul."

Garage, nobody here thinks you are a "ghoul." You are ignorant and, maybe, stupid but your heart bleeds for the underprivileged, like KSM, Saddam and Osama.

Everybody knows that Muslim terror is coming from their underprivileged backgrounds, like KSM's background of "He later transferred to North Carolina Agricultural and Technical State University and received a Bachelor of Science (BS) in mechanical engineering in 1986."

Such privation ! Such ignorance !

Yes, you must be correct.

Revenant said...

That's fascinating. Now comes the part where you prove the people being tortured are actually in Al Qaeda.

Prove to whom, dummy?

Is English your second language? When a person tells you to prove something, it is generally understood that he means "prove it to him".

Like I pointed out, Dick Cheney admitted that the guy tortured to death via hypothermia had been mistaken for someone else. He further conceded that around one in four of the EIT subjects had nothing to do with terrorism.

The thing about claims like "they consented to torture by joining Al Qaeda" is that they only justify torture of people who actually joined Al Qaeda. They do not justify torturing people some half-wit soldier or CIA bureaucrat mistakenly thinks might be in Al Qaeda. There's a reason it is called "the enhanced interrogation program", not the "extra pain for randomly selected ragheads program". We're supposed to be making an effort to ascertain that these people really *are* high value targets before pulling this crap -- and, again, we're supposed to not kill them doing it, because killing them prevents interrogation.

This isn't a fucking judicial proceeding.

Obviously not. If it was a judicial proceeding there would be no doubt at all that the officials involved should be prosecuted.

Michael said...

Revenant

"We're supposed to be making an effort to ascertain that these people really *are* high value targets before pulling this crap -- and, again, we're supposed to not kill them doing it, because killing them prevents interrogation."

As opposed to our humane drones.

Sayyid said...

I believe Yoo's point is that there's an implied affirmative defense of necessity for criminal laws in the United States, and that he believes stopping terrorists from attacking the U.S. would satisfy the elements of it. I'm sure there's a case that specifically addresses what those elements are, which I leave as an exercise for the Professor.

garage mahal said...

Does garage have a brain ? Would someone please provide evidence ? A certificate from a reading class would help.

So you're asking someone else to dispute a claim I made? That's fucking courageous!

jr565 said...

Revenant wrote:
Ask the people saying "we're allowed to torture them because they're in Al Qaeda" how they intend to prove the people are in Al Qaeda.

So far as I can tell, the standard of proof being used is "the White House said so". Anyone who thinks that's an acceptable standard for anything has obviously been in a coma since January of 2009.

How is the White House determining they are Al Qaeda or ISIS when drone striking them? At least when you interrogate them you can interview them. Drop a bomb from on high and you're just scooping up body parts.

Revenant said...

As opposed to our humane drones.

Translation: squirrel!

John Cunningham said...

Hey Irwin, you leftie scrote, ya gonna prosecute Boy Clinton and your god, Obama? they both went and go allout on rendition to such paragons of human rights as Egypt, Jordan, Pakistan, etc. subbing out torture is the same as doing it yourself, right, comrade??

Drago said...

garage: "So you're asking someone else to dispute a claim I made?"

We're still waiting for you to realize that Tojo wasn't executed for the crime of waterboarding.

Not that you ever will.

Moron.

Revenant said...

How is the White House determining they are Al Qaeda or ISIS when drone striking them?

Just in case you were wondering, "Obama fucked up worse" does not actually constitute a rebuttal to the claim that the CIA fucked up.

Moneyrunner said...

This entire discussion has an old-maidish look about it. Just the sort of thing that college law professors love to talk about with nothing important is going on. If focused on World War 2, the biggest issue with this group of ladies is whether General Patton should have been cashiered or demoted of slapping a soldier. That’s the important issue of the day. And if the answer’s wrong we owe good old Adolph an apology and demand a do-over. And I can understand how that could be. What do the residents of Madison have to fear except - as our hostess has reminded us - bad water? They don’t even have a Lindt coffee shop; you have to buy your Lindt chocolates at Walgreen.

So the burning question as the world turns and the “Known Wolf Jihadists” decide that the infidels are not sufficiently sensitive to their desires is just how much is morally justified before another few thousand are immolated. I realize it’s a sin but having Liberals die with clean hands if critical intelligence is not gained – given their moral inhibitions – leaves me with no regrets at all. I’m sure they have families and relatives who care, but they we can inter their remains knowing that this is what they would have wanted. In fact, the though occurred to me this morning that past targets and future likely targets are rich in Liberal voters. You see, this is not an abstract question; it has real world consequences. So I’m torn, but mostly from an electoral perspective. The moral issue is resolved.

Drago said...

Here's a brief description of one of garage's Japanese "innocents":

Akiro Muto

Akira Muto was born in Japan in 1883.

"Embarking on a career in the military, he was appointed Head of the Military Affairs Bureau, a position he fulfilled alongside other responsibilities, contributing to making him an important participant in a conspiracy the aim of which was to plan, prepare and carry out wars of aggression.

He was charged with having taken part in wars of aggression against China, the United States, the British Commonwealth, the USSR, the Netherlands and France.

Moreover, as an officer serving under General Matsui between November 1937 and July 1938, he was charged with war crimes for his participation in the atrocities committed at Nanking.

In October 1944, Muto was appointed Chief of Staff to General Yamashita in the Philippines, a position he held until the surrender. Under his command, campaigns of slaughter, torture and other atrocities were carried out against the civilian population, prisoners of war and civilian internees.

After the Japanese surrender, Muto was arrested by the American occupation authorities"

So, hundreds of thousands of innocents/civilians massacred (by hand) by this guy and others.

Gee, it's exactly equivalent to waterboarding a couple of islamist terrorists!

I mean, if we didn't have written explanations in front of us, we wouldn't be able to tell the 2 cases apart!

jr565 said...

Revenant wrote:
Just in case you were wondering, "Obama fucked up worse" does not actually constitute a rebuttal to the claim that the CIA fucked up.

How do you propose to identify enemy combatants who don't wear uniforms? You think we should send cops out into the field to read them Miranda warnings?

jr565 said...

Rev is putting the cart before the horse. If we bomb em we can't identify them. If we capture them we'd need to interrogate them. And the only other way we'd find out about their network is to monitor them. Every one of which Rev had an argument with.
It's almost like he has no strategy at all.

Michael K said...

"So you're asking someone else to dispute a claim I made? That's fucking courageous!"

You could provide evidence but I realize your problem, not being able to read and all.

Does using the term "fucking" all the time give you a boner ?

chickelit said...

All who planned, all who implemented, all who carried out the torture should be criminally prosecuted. How else do we as a society express our outrage?

In all seriousness, he should try and start a Twitter hashtag campaign. If it gets traction, it will get attention and get people talking -- maybe even starts some riots. Get some sit-ins going and maybe some Soros money. But if it flops, maybe he should rethink some of his premises.

garage mahal said...

Drago walks into the club and is like "did you know we didn't execute Japanese waterboarding torturers, only sentenced them to 15 years hard labor?"

Alan said...

Call me old fashioned but they are called clandestine services for a reason. I would rather not know what the CIA is doing at any given time. I trust the executive branch and the appropriate classified congressional committees to manage this effectively and DISCRETELY! I certainly don't want to see this adjudicated on the front pages of the NY Times and Washington Post. I think what Feinstein has done is damn near treasonous.

Sebastian said...

"How else do we as a society express our outrage?"

By prosecuting Erwin and his cronies first for aiding and abetting the enemy.

Unknown said...

Dear Professor:

You can pick up a weapon and go out on the line

You can go soak in gasoline and light a match

Or you can shut your face

But you got the buttstroke coming either way.

Rotten scut. I really don't want to hear another fucking word. Shit happens. Bombs drop from 30,000 feet and hit the wrong thing. Sensors jam. Radio messages are garbled. The only local mook on the hill who'll take your calls has a score to settle and sold his girlfriend's ex down the river.

Fog of war, buddy. Write it off. Tough. Run some dirt on it. Go away you bother me. I bet this fucker can't even write a legal brief if his coffee has skim instead of half and half. Try cross-examining a witness while his courtroom is being shelled. Overall the legal profession seems to be full of people who never had anything bad happen to them...and really, really should. Not out of sadism, simply to open their eyes and give them some much needed life experience.

Paul said...

Revenant,

When you catch them on the battlefield with guns and bombs you don't need to 'prove' they are with any specific terrorist organization.

They are de-facto terrorist for possessing and using those weapons against American forces.

In WW2 and before if you were caught on a battlefield WITHOUT UNIFORM and engaged in war, you were summary SHOT.. right there, no trial, no nothing.

Why? Cause you operated outside the norms of civilized warfare.

The Geneva conventions DO NO COVER such people. None of the three articles cover those who belong to no country, wear no uniform, and engage in war.

chillblaine said...

The federal law prohibits torture, but does it say that waterboarding is torture? That's a worthy discussion.

If we can't waterboard high-value detainees, I would recommend forced, repeated viewings of Bewitched. The one with Will Ferrell. The intent would be to extract information, but the suffering caused would be a side benefit.

n.n said...
This comment has been removed by the author.
n.n said...

chillblaine:

Change the name to planned communication. Change the facility to a domestic Planned Parenthood et al. Conduct the communication with threats and actual lethal injection, decapitation, and dismemberment. A pro-choice policy will overcome any lingering moral ambiguity. Even the United Nations is considering official adoption of this policy perspective.

The value in a planned communication policy, is that unlike enhanced interrogation, it can be conducted without cause, and any resultant deaths or injuries are intended.

Robert Cook said...

If we do not prosecute all involved in the atrocious torture program--as we will assuredly NOT--it simply proves, (as if it needed proving), that we are truly a lawless state, where the powerful and wealthy and connected may act with impunity, while the rest of us are subject to summary assault and even murder by the authorities. (This is aside from the ongoing spying on all our electronic communications all the time, which no one, disturbingly, seems the least bit angry or concerned about.)

We are in the fall of the American Empire right now and everyone wants to pretend we're not, or that it's "all Obama's fault." Heh. The rot started decades ago.

buwaya puti said...

Cook, again, is right. Maybe for the wrong reasons, but right none the less.
Its not murder, though, that's the usual sanction, but career and financial ruin of several sorts, imposed either by the bureaucrats or the consortium of allied interests. Not everyone is vulnerable to this, yet, and there are still more or less free zones, but the limits of freedom are shrinking.

Drago said...

garage mahal: "Drago walks into the club and is like "did you know we didn't execute Japanese waterboarding torturers, only sentenced them to 15 years hard labor?"

So now you're admitting that you lied earlier about Japanese torturers/mass murderers being executed for water boarding right?

This is clearly your first "walk back" from your moronically stupid and hilariously easy to disprove assertions.

Admit it: you actually believed Tojo was executed for waterboarding!!

Any why? Because Paul Begala wrote it in a Huffington Post column?!

LOL

I mean, it's almost beyond comprehension how much of a hack and liar you'd have to be to believe and then reassert that.

Drago said...

Not to worry garage.

We all know that by tomorrow morning your "Reset" functionality will have been activated and you will "forget" what you've read today and reset to "we executed Japanese for waterboarding!!eleventy!! Paul Begala told me so!!".



chickelit said...

I'm not a criminal law expert, so help me out here. This issue is specific intent, right?

You're much more informed than the average person who wants to know even more basic facts such as which body of law governs enemy combatants. It's alarming that US criminal law applies worldwide -- especially to committed enemies -- but that's what portrayed here; only international law under signed treaties should apply.

Secondarily, are legal scholars such as Chemerinsky OK with just unilateral enforcement of international laws? They seem disinterested in applying the same rules to the actions of enemy combatants. A bilateral interest cannot be assumed on their part and seems to be a major sticking point as to why they are mostly ignored.

Drago said...

Robert Cook: "This is aside from the ongoing spying on all our electronic communications all the time, which no one, disturbingly, seems the least bit angry or concerned about."

You'd have to be a lying leftist to assert that.

That's right cookie, "no one, disturbingly, seems the least bit angry or concerned about" all our electronic communications being spied upon.

It gets worse.

Cook: "We are in the fall of the American Empire right now and everyone wants to pretend we're not....."

Again, how deaf, dumb, blind and/or purposely obtuse do you have to be to pretend "everyone wants to pretend we're not" in a decline and have been for quite some time?

Gee cookie, are you sure no one has been talking about this for a long time?

Again, you're better off sticking with your made up conspiracy theories.

Achilles said...

Revenant said...
Last I checked, the Al Qaeda leadership all volunteered for their jobs, too.

"That's fascinating. Now comes the part where you prove the people being tortured are actually in Al Qaeda.

Hint: not even the government claims that all the people who were tortured were actually terrorists."

What is also fascinating is some guy sitting on his couch acting like he has any clue what goes on over there. You read some bullshit on the Internet at Salon or a government report issued by staffers with agendas.

Hint: you don't know what the fuck you are talking about.

Achilles said...

Robert Cook said:

"We are in the fall of the American Empire right now and everyone wants to pretend we're not, or that it's "all Obama's fault." Heh. The rot started decades ago."

How about over two centuries ago you piece of shit.

And if it is so rotten please save your pure soul and get out before it is tainted. I wouldn't want you to have to walk the ground I have despoiled. I am sure your purity would fit right in over in China. They wouldn't ever allow torture there.

Achilles said...

Revenant said...

"Like I pointed out, Dick Cheney admitted that the guy tortured to death via hypothermia had been mistaken for someone else. He further conceded that around one in four of the EIT subjects had nothing to do with terrorism."

"The thing about claims like "they consented to torture by joining Al Qaeda" is that they only justify torture of people who actually joined Al Qaeda. They do not justify torturing people some half-wit soldier or CIA bureaucrat mistakenly thinks might be in Al Qaeda. There's a reason it is called "the enhanced interrogation program", not the "extra pain for randomly selected ragheads program". We're supposed to be making an effort to ascertain that these people really *are* high value targets before pulling this crap -- and, again, we're supposed to not kill them doing it, because killing them prevents interrogation."

Oh my god. So for everyone here to have even the most basic understanding of how the tiny number of people who ended up being subjected to EIT. First they would get caught in the field. We would vet them and determine who went back. There were rules. We had to have probable cause because the detention facilities had so many cells. They would stay there for up to a week being interviewed. All of the evidence we gathered and their associations and activities were taken into account. If they were determined to be important enough they got kicked up to intelligence agencies. That was a small number and most of those people were released to Afghanistan authorities.

The number of people that got to the point where they were subjected to EIT was so small and by that time a lot of very competent people had handled them. There was no random and it wasn't just any guy off the street. No some of them weren't terrorists. They were awful people though. Yes there is a difference.

Do you people just get on a message board and talk like this as if you know what is going on? God Damn it you people are irritating. This country is falling apart and it starts with ignorant people who want to morally preen themselves.

Douglas said...

I blame George W. Bush for not pardoning those who did what he and the House and the Senate (including, without limitation, Feinstein and Pelosi) asked them to do: whatever it took to prevent a follow-on attack after 9/11. The use of the pardon power is the legal answer. The CIA certainly went up to the line of legality and may have crossed it. The president asked them to do that and he should have given out a blanket pardon before leaving office.

Kyzernick said...

@ Unknown, 2100hrs 15 Dec

Semper Fi, buddy.

Left Bank of the Charles said...

So all that stands between a lawyer and his clients who might be criminals is specific intent? I would hope that John Yoo would get a better defense than that.

The trial of John Yoo would make for an interesting moot court exercise.