9/11 Commission ordered torture
May 14, 2009 9:37 AM Subscribe

The 9/11 Commission suspected that critical information it used in its landmark report was the product of harsh interrogations of al-Qaida operatives - interrogations that many critics have labeled torture. Yet, commission staffers never questioned the agency about the interrogation techniques and in fact ordered a second round of interrogations specifically to ask additional questions of the same operative...

More than one-quarter of all footnotes in the 9/11 Report refer to CIA interrogations of al Qaeda operatives subjected to the now-controversial interrogation techniques.

posted by Joe Beese (317 comments total) 7 users marked this as a favorite

Tying Cheney into direct orders to torture to get a link between Al Queada and Iraq is the holy grail. If we can get him on that, there will be hell to pay.

We need to know the questions they asked, and who ordered the confessions.
posted by empath at 9:50 AM on May 14, 2009

Pelosi: ‘At Every Step Of The Way, The Administration Was Misleading The Congress’ .
posted by ericb at 9:52 AM on May 14, 2009 [4 favorites]

I'd like to think that if we push hard enough on this, something will be done about this: prosecutions, etc. I also like to think that if I wish hard enough, I can turn pencil erasers into pez dispensers.
posted by Astro Zombie at 9:55 AM on May 14, 2009 [4 favorites]

Yet, commission staffers never questioned the agency about the interrogation techniques...

Did they have any inkling of a reason to think they needed to ask this?

....and in fact ordered a second round of interrogations specifically to ask additional questions of the same operative

This is phrased as though it makes things worse, but if they didn't know about the torture why would it be unreasonable to ask more questions?
posted by DU at 9:56 AM on May 14, 2009 [1 favorite]

Does Nancy Pelosi expect us to believe that she did NOT know she was being mislead?
posted by spicynuts at 9:56 AM on May 14, 2009 [6 favorites]

Cheney once forgot to pull his pants down before going number two.
posted by pwally at 9:56 AM on May 14, 2009

It's amazing how Cheney has come "out of hiding" these past few days, spinning, spining and spinning. His daughter has also hit the circuit defending the Bush administration.

Funny thing, though ...

Washington Post:As Cheney seizes spotlight, many in GOP wince.

NBC News video | 03:00.
posted by ericb at 9:59 AM on May 14, 2009

Back in the day, there was the mostly-non-serious theory floating around that Bush/Cheney were deep cover Leftist operatives trying to take down the GOP. Cheney's recent activity, forcing the entire party to cover for increasingly-egregious torture information, is making that theory seem more and more plausible.
posted by DU at 10:01 AM on May 14, 2009 [1 favorite]

"... It calls into question how we were willing to use these interrogations to construct the narrative."

Literary theorist in me is pleased.
posted by Free word order! at 10:02 AM on May 14, 2009 [2 favorites]

Cheney is spinning for his life at this point.

At some point, some bright young politician in the GOP is going to recognize that Cheney is going to sink the entire party unless they ostracize him. Once that's done, the whole house of cards will fall apart.

The GOP's survival is going to depend on them casting the Cheney-ites as a criminal conspiracy that hijacked the party and the national security apparatus of the United States for their own purposes.
posted by empath at 10:03 AM on May 14, 2009 [1 favorite]

Oh, it goes much deeper than Cheney, DU.
posted by enn at 10:04 AM on May 14, 2009

If we can get him on that, there will be hell to pay.

I wish I shared your optimism.
posted by diogenes at 10:05 AM on May 14, 2009

At some point, some bright young politician in the GOP is going to recognize that Cheney is going to sink the entire party unless they ostracize him.

This is a guy who has no problem wiretapping and torturing. You think he doesn't have the goods on any potential "bright young politicians" that might try to turn on him?
posted by DU at 10:08 AM on May 14, 2009 [1 favorite]

My very favorite exchange from the Ali Soufan testimony yesterday was this:

SEN. LINDSEY GRAHAM: The vice president is suggesting that there was good information obtained, and I'd like the committee to get that information. Let's have both sides of the story here. I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

ALI SOUFAN: Because, sir, there's a lot of people who don't know how to interrogate, and it's easier to hit somebody than outsmart them.

posted by shiu mai baby at 10:10 AM on May 14, 2009 [29 favorites]

Balls. That quote link was supposed to go here.
posted by shiu mai baby at 10:12 AM on May 14, 2009

SEN. LINDSEY GRAHAM: I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

I wonder if it hurts Graham inside to say things like that, or if he has mental calluses that dull the pain.
posted by Salvor Hardin at 10:14 AM on May 14, 2009 [6 favorites]

I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

jesus christ what a fucking piece of shit that guy is
posted by Optimus Chyme at 10:15 AM on May 14, 2009 [22 favorites]

I wonder if it hurts Graham inside to say things like that, or if he has mental calluses that dull the pain.

Third option being that he was never anything more than a stupid hillbilly.
posted by goethean at 10:16 AM on May 14, 2009 [3 favorites]

I can't believe that Graham actually felt comfortable making that kind of morally contemptible statement. And I can't believe or media lets him get away with it.
posted by empath at 10:18 AM on May 14, 2009 [1 favorite]

You have to scroll down pretty darn far in the first link to get to a critical point:

Ratner argues "if they suspected there was torture, they should have realized that as a matter of law, evidence derived from torture is not reliable, in part because of the possibility of false confession…at the very least, they should have added caveats to all those references."

Part of what this news means is that there's a good chance much of the information in the report is false.
posted by foxy_hedgehog at 10:22 AM on May 14, 2009 [4 favorites]

I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

jesus christ what a fucking piece of shit that guy is

This should be repeated
posted by The Whelk at 10:23 AM on May 14, 2009

SOUTH CAROLINA FACTS

CHIEF EXPORT: Sagging Jowls
STATE BIRD: Carolina Wren
STATE CENTURY: 18th
posted by Optimus Chyme at 10:25 AM on May 14, 2009 [19 favorites]

I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

I assume he's going to issue an apology to Japan (IIRC) whose soldiers we executed for this 500 year old, high effective traditional (yet enhanced) technique.
posted by DU at 10:25 AM on May 14, 2009

I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

Oh, longer than 500 years. They worked on jesus.
posted by Astro Zombie at 10:27 AM on May 14, 2009 [5 favorites]

Let's have both sides of the story here. I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

It's a shame Pinochet died before we got to hear "both sides of the story".
posted by Combustible Edison Lighthouse at 10:27 AM on May 14, 2009 [1 favorite]

Josh Marshall (not unusually) makes an excellent point: Pelosi, as Speaker of the House, is extremely high up in the government; accusing the CIA of lying about torture comes really close to casting the Agency as a rogue element. Of course, we could probably call the Bush administration itself a rogure element, so maybe it's splitting hairs...
posted by kaibutsu at 10:29 AM on May 14, 2009 [1 favorite]

Graham On Torture: ‘I Don’t Think That These Techniques As A Whole Have Made Us Safer’.

He's so trying to walk a fine line in this torture debate. Typical politician.
posted by ericb at 10:37 AM on May 14, 2009

There's also testimony coming out saying that waterboarding was used heavily to create a link between Iraq and Al-Qaida. Any 'information' obtained would have been (and probably was) used to justify the Iraq war and thus wasn't going to be subjected to the rigors of a court proceeding. This was also presumably the purpose of the Gitmo 'tribunals:' now that they had all of this shady, unadmissible evidence obtained from torture and illegal wiretaps, they needed to set up a new court system in which they could use it.

Given another ten years, they probably would have written their own Geneva conventions (highly classified, of course) defining anyone who isn't American as an enemy combatant, and defining anyone who hadn't signed the new, secret Convention as a rogue state.
posted by kaibutsu at 10:37 AM on May 14, 2009

This just in:

"The CIA says it cannot comply with the request from former Vice President Dick Cheney, who wants CIA documents declassified and released that he says would show the successful application of harsh interrogation methods."

posted by ericb at 10:39 AM on May 14, 2009

The CIA is an entity unto itself, which has no particular loyalty to anything or anyone but itself. It gives the US government preferential treatment because that's where it gets a good amount of its money. Rogue element? Hell, yes, all that and worse.

There is no atrocity too great for the CIA. They have and will do anything to further their own agenda. A little MK Ultra on American citizens, anyone? A little overthrowing of democratically elected governments, eh? Making up shit so as to launch a war in Vietnam? Doing it again so as to launch a war in Iraq?

The CIA has been there, done that. Pure. Fucking. Evil.
posted by five fresh fish at 10:40 AM on May 14, 2009 [6 favorites]

Let's have both sides of the story here. I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

I guess I totally misread the quote (mostly cuz I don't have the background on Graham) - I thought what he was doing was saying 'let's see the information gathered if this is such an effective technique'. In other words, a challenge to prove that good info was gathered, with the underlying implication being that if that info was provided it would be clear that no good info was gathered.
posted by spicynuts at 10:40 AM on May 14, 2009

There's also testimony coming out saying that waterboarding was used heavily to create a link between Iraq and Al-Qaida.

That's the whole point of the FPP's second hyperlink to the Daily Beast investigative report published today.
posted by ericb at 10:41 AM on May 14, 2009

I find all this confusing but I think Obama had it right in his "dark time" speech--you've got to put it in historical context. After 9/11, the Bush admin was desperate to make sure another attack wasn't in the offing and to prevent any such attack if it were. If you're cynical, you can say it was because they were thinking about the 2004 election; if not, you say they just overestimated Al Qaeda's strength. In either case, they were desperate. And it's not as if Bin Laden et al. had stopped making direct threats. So Bush and the CIA did what they did to the guys they had on hand to find out what they could. I'm not sure that I would have done any different if I were in their shoes. I thank God that I didn't have to make the call. As for the 9/11 commission, their brief was to find out what the hell happened so it wouldn't happen again. Apparently they did that.

Of course, to understand is not to excuse. But before we issue any sort of judgment we need to understand, and it's not clear to me that we do.
posted by MarshallPoe at 10:44 AM on May 14, 2009 [1 favorite]

Oh, longer than 500 years. They worked on jesus.

Read the story again. Jesus confessed everything to Pontius Pilate in interrogation before a single scourge was swung or thorny crown was stuck on his head.
posted by Pollomacho at 10:44 AM on May 14, 2009 [1 favorite]

So Bush and the CIA did what they did to the guys they had on hand to find out what they could. I'm not sure that I would have done any different if I were in their shoes.

You say that like torture isn't known to be ineffective. Are you calling the CIA incompetent?
posted by DU at 10:47 AM on May 14, 2009

I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

That's a man with a broken moral compass.
posted by diogenes at 10:48 AM on May 14, 2009

Read the story again. Jesus confessed everything to Pontius Pilate in interrogation before a single scourge was swung or thorny crown was stuck on his head.

It's not the torture that works alone; it is also the fear of torture.
posted by Astro Zombie at 10:53 AM on May 14, 2009

I'm not sure that I would have done any different if I were in their shoes.

In that case, please let us know before you run for elective office or seek employment with the government that might put you in a policy-making or police role.
posted by Kirth Gerson at 10:56 AM on May 14, 2009 [3 favorites]

Lindsay Graham: "They made mistakes. They saw the law many times as a nicety we couldn't afford [...] but that's not a crime"

I disagree. I think breaking criminal law is a crime.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 10:58 AM on May 14, 2009 [9 favorites]

Watch out, this one is gonna blow.

What's fascinating is the dynamic--the other party is completely in power, a position of tremendous leverage.
posted by Ironmouth at 10:58 AM on May 14, 2009

It's not the torture that works alone; it is also the fear of torture.

If we are going to continue to use the fictional account of Jesus as an example here (and I think it may be fitting when dealing with Al Qaida members who also believe they are following a divine cause) wasn't Jesus actually looking forward to the torture and execution as part of God's plan for the world? Al Qaida trained operatives to embrace torture, imprisonment, and even execution as fulfilling their mission (and therefore God's mission). They were also trained to dole out false information interspersed with some minor truths to let the infidels think they were onto something.

Just as you say the fear of torture is part of the torture, the fear of terrorism is part of the terror-ism.
posted by Pollomacho at 11:02 AM on May 14, 2009

the fear of terrorism is part of the terror-ism.

I wish we could make that clearer somehow. Maybe we should call it fearorism.
posted by Astro Zombie at 11:06 AM on May 14, 2009 [1 favorite]

Lindsay Graham: "They made mistakes. They saw the law many times as a nicety we couldn't afford [...] but that's not a crime"

18 USC 2340 says otherwise.
posted by mikelieman at 11:08 AM on May 14, 2009 [2 favorites]

You say that like torture isn't known to be ineffective. Are you calling the CIA incompetent?

No. But I do know this: "torture" is what you call interrogation techniques you don't like. Since there is no widely-accepted definition of "torture" (at least in this context), then we can't really say whether "it" is effective or not because we don't know what "it" is. That's not to say that we can't judge the general effectiveness (and appropriateness) of different interrogation techniques. We can and should. But the word "torture," in the present case, just doesn't move us very far down that road. Just my opinion.

My point, tho, was that we need to put what the Bushies did in the right historical context to understand it.
posted by MarshallPoe at 11:09 AM on May 14, 2009

This is why I am opposed to secrecy in general. It is used to cover up a multitude of sins, from mere incompetence to outright criminality. We should be extremely selective in what we decide to ultimately keep from the public.

The entire Cheney circus is predicated on secrecy. He "demands" that interrogation results be released, claiming that they will show that torture gave us valuable information. What he is counting on is exactly the opposite - that the doctrine of secrecy will prevent the release of that information. And when the information is not released, he is free to claim anything - how valuable torture is, there are pink unicorns and Iraq was poised to destroy the world.

That is why I say - release the memos. Everything. Precisely so criminals like Cheney can not hide behind the veil of secrecy. When everything is revealed, and it is clear to the public what a clustefuck it's all been, there will be nowhere to hide the incompetence and the criminality.

Secrecy in a democracy is inherently corrupting. The less of it we have, the better.
posted by VikingSword at 11:13 AM on May 14, 2009 [7 favorites]

The CIA says it cannot comply with the request from former Vice President Dick Cheney, who wants CIA documents declassified and released...

Sen. Russ Feingold (D-WI) on those documents:

“Nothing I have seen — including the two documents to which former Vice President Cheney has repeatedly referred — indicates that the torture techniques…were necessary.” Now, in a letter to the National Archives, CIA Information and Privacy Coordinator Delores M. Nelson, “rejected Cheney’s request because the documents he has requested are involved in a Freedom of Information Act court battle.”

posted by ericb at 11:13 AM on May 14, 2009

Ironmouth: The problem is that the other party is complicit, which means they have a lever without a fulcrum.
posted by absalom at 11:14 AM on May 14, 2009 [1 favorite]

Lindsay Graham: "They made mistakes. They saw the law many times as a nicety we couldn't afford [...] but that's not a crime"

‽‽‽‽‽‽

Even Graham's logic is a crime, it's so tortured.
posted by saulgoodman at 11:14 AM on May 14, 2009 [1 favorite]

My point, tho, was that we need to put what the Bushies did in the right historical context to understand it.

they had an agenda of overseas interventions they wanted to push and they tortured some of the terrorists they had in an attempt to manufacture "evidence" that would justify it- just like they manufactured wmd "evidence"

that's your historical context
posted by pyramid termite at 11:15 AM on May 14, 2009

How can they claim waterboarding a dude 183 times in a month "works."

Seriously. I mean there goes the oft-quoted "ticking time bomb" bullshit right there. If it takes 183 times and a month to coerce the information "you want" out of a terrorist then Mr. Bauer, I'm afraid LA just got nuked didn't it?

The fact is drowning somebody over and over combined with sleep deprivation over the course of a month so alters and distorts the subjects recall and cognitive function to the point they are useless to you in terms of providing intelligence. All they will do is give you what you suggest.

So. Clearly they waterboarded this guy 183 times becuase he didn't know anything useful. Instead the process was more akin to the Inquisition they wanted him to "confess" to the pre-determined needed set of crimes but somehow he just wasn't cooperating. And I bet a good deal of that intelligence they wanted him to "confess" was about Iraq's supposed connection to 9/11.
posted by tkchrist at 11:16 AM on May 14, 2009 [10 favorites]

But I do know this: "torture" is what you call interrogation techniques you don't like. Since there is no widely-accepted definition of "torture"...

"Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency's interrogation methods for high-level Qaeda prisoners constituted torture...."

And who is the ICRC?

States parties (signatories) to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and internal armed conflicts.

So your he said/she said defense of torture is 100% bullshit.
posted by DU at 11:17 AM on May 14, 2009 [8 favorites]

Wait, is this the same Lindsey Graham that was one the House managers that brought the Clinton impeachment to the senate? Really?
posted by ryoshu at 11:17 AM on May 14, 2009

Ironmouth: The problem is that the other party is complicit, which means they have a lever without a fulcrum.

Or maybe not. Maybe the torturers are just trying to feed that perception as a way to delegitimize and undermine the investigative process. If the CIA's involved, as a general rule, you can be sure there are fake documents and lies involved.

Pelosi: CIA Lied To Congress About Torture
posted by saulgoodman at 11:17 AM on May 14, 2009

MarshallPoe, that is precisely the argument of the authors of the "Torture Memos" and precisely the argument that the Justice Department determined should qualify them for disbarrment.
posted by Pollomacho at 11:19 AM on May 14, 2009 [1 favorite]

The ICRC has also concluded that failure to close bold tags and any and all uses of the blink tag are torture. I'll call my lawyer.
posted by DU at 11:21 AM on May 14, 2009 [2 favorites]

I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.

Oh. For fuck sake.

Yeah. Like: The reason child rape has survived for thousands of years is becuase it makes kids stronger?

Torture survived for 500+ years because there is no dearth of sick motherfuckers who get off on hurting and torturing people. And it's even more awesome for them when they are given a "good" reason to do it. And for 500 years we have repeatedly given these sick fucks "good" reasons.
posted by tkchrist at 11:22 AM on May 14, 2009 [9 favorites]

As to Jesus and his "sacrifice". I never quite got that, even as a 6 year old child. When my grandma told me, with tears in her eyes, that Jesus "sacrificed his life!" for us sinners, I asked how it was a sacrifice of his life when he was assured of rising from the dead? Grandma got irritated, but had no answer. As an adult, I wonder, if in fact it was a sacrifice on the part of Jesus to give up his life, then he was only giving up his life on Earth - implying that the eternal life in Heaven is not all that it's cracked up to be, and the dealio here on Earth is infinitely preferable. Which also explains why a lot of devout Christians seem to cling to earthly life with great tenacity, instead of gratefully embracing the wonderful life in Heaven... seems they'd rather postpone Heaven and its eternity as long as possible :).
posted by VikingSword at 11:22 AM on May 14, 2009 [4 favorites]

"They had an agenda of overseas interventions they wanted to push and they tortured some of the terrorists they had in an attempt to manufacture "evidence" that would justify it- just like they manufactured wmd "evidence."

I hear this sort of thing a lot, and maybe some of it is correct. But in order to believe it you have to posit a very strange view of the Bush admin and ignore a lot of evidence to the contrary. The truth is much more complicated any such simple scenario. But black and white is, I admit, very appealing...
posted by MarshallPoe at 11:22 AM on May 14, 2009

I mean there goes the oft-quoted "ticking time bomb" bullshit right there. If it takes 183 times and a month to coerce the information "you want" out of a terrorist then Mr. Bauer, I'm afraid LA just got nuked didn't it?

Tom Tomorrow has created a graphic version.
posted by Kirth Gerson at 11:24 AM on May 14, 2009 [3 favorites]

Pelosi should have known there was no legal basis for her Gang of Four briefing. The most widespread problem I see is that the politicians we elect either don't understand or choose to disregard at their convenience the Constitution, the branches of government and the laws that apply to them. Accountability is something they're all equally interested in avoiding and that takes precedence over the rule of law or even any kind of meaningful discourse.
posted by grounded at 11:24 AM on May 14, 2009

If there were Democrats complicit with the violation of US and international laws prohibiting torture, then I want to see their heads on political pikes just as much.

I think VikingSword has it - secrecy is eating away at our democracy.

Now Obama has decided to cover up photos of prisoner abuse by Americans in Iraq and Afghanistan?!?! And still no criminal investigation? There is no excuse for this. If the photos are so disturbing that Obama fears they will put US troops in danger (which IMO is a transparent political covering of his own ass), surely they deserve an investigation to prosecute the people who committed the horrible atrocities pictured in the secret photos?

I think it's time we found out exactly what sick sadistic games we've been paying for with our taxes.
posted by Salvor Hardin at 11:27 AM on May 14, 2009 [2 favorites]

But in order to believe it you have to posit a very strange view of the Bush admin and ignore a lot of evidence to the contrary.

Like?

What evidence? There is overwhelming evidence that the Bush administration created an entire PR machine to spin for Iraqi involvement in 9/11. From the bullshit about Atta meeting Iraqi intelligence in Prague —except Atta was in Florida at the time—to the entire Yellow Cake/Niger nonsense. Jeebus. Need I go on?
posted by tkchrist at 11:28 AM on May 14, 2009 [1 favorite]

So your he said/she said defense of torture is 100% bullshit.

And just because you say I was "defending torture" doesn't make it so. Moreover, just because some body--even a very well-established body with a lot of thoughtful people on it--say that X, Y and Z is torture doesn't make its definition the definition that we all must adhere to. Clearly there is confusion on the issue of what "torture" is or there wouldn't be so much debate about it. By contrast, there is much less debate about what a "chair" is (though I imagine there is some).
posted by MarshallPoe at 11:28 AM on May 14, 2009

I hear this sort of thing a lot, and maybe some of it is correct. But in order to believe it you have to posit a very strange view of the Bush admin and ignore a lot of evidence to the contrary.

What evidence to the contrary? I can give you a multitude of cites (we can start with PNAC and move on from there) that shows people at the highest levels of the Bush administration had been agitating for a war with Iraq. Linking al Qaeda to Iraq would have been the holy grail of justifications, so what's wrong with a little torture to produce that link?
posted by ryoshu at 11:29 AM on May 14, 2009

After 9/11, the Bush admin was desperate to make sure another attack wasn't in the offing and to prevent any such attack if it were.

Follow-up attack prevention fail.

The GOP's survival is going to depend on them casting the Cheney-ites as a criminal conspiracy that hijacked the party and the national security apparatus of the United States for their own purposes.

That applies to every Republican administration since 1968.

There's also testimony coming out saying that waterboarding was used heavily to create a link between Iraq and Al-Qaida.

President Bush wanted to paint a US spy plane with UN colors and try to get Iraq to shoot it down. There's not too much moral distance between that and Nazi Germany faking border incidents as an excuse to invade Poland. Japan attacked Pearl Harbor because they foresaw a coming conflict with the US over resources (including oil) and figured since we were going to end up fighting sooner or later, why not sooner? (Note: comparing these specific situations is not implying a total equivalence between the Bush administration and Nazi Germany or Imperial Japan.)
posted by kirkaracha at 11:32 AM on May 14, 2009 [1 favorite]

even a very well-established body with a lot of thoughtful people on it--say that X, Y and Z is torture doesn't make its definition the definition that we all must adhere to.

See what these apologists do? They attempt to bog you down in the semantics of what defines "torture." It's like Clinton arguing over what the word "is" meant.

The US military code of justice and our own government from 1940 on, through WWII, The Korean War, and Vietnam defined waterboarding as torture. Waterboarding was something the bad guys did. We executed motherfuckers for doing it, okay.
posted by tkchrist at 11:33 AM on May 14, 2009 [9 favorites]

Lindsay Graham has to play along or risk being outed. Simple as that.
posted by fourcheesemac at 11:35 AM on May 14, 2009

Clearly there is confusion on the issue of what "torture" is or there wouldn't be so much debate about it.

Would you submit yourself to a waterboarding session? No?
posted by Blazecock Pileon at 11:35 AM on May 14, 2009

I use a pretty simple rule: If you have to explain why it is not torture, it is torture.
posted by Astro Zombie at 11:36 AM on May 14, 2009 [14 favorites]

Lindsay Graham has to play along or risk being outed.

Outed as what? A moron? I think the cat's out of the bag on that one.
posted by tkchrist at 11:37 AM on May 14, 2009 [1 favorite]

Clearly there is confusion on the issue of what "torture" is or there wouldn't be so much debate about it.

The only "confusion" is from mud thrown in the water by torture apologists such as yourself.

The ICRC isn't just a "some body" with some "thoughtful people". They are the official governing body of the Geneva Conventions. They define "torture". They say torture happened. Are you calling them liars or are you willing to open your mind to the faint possibility that a President and VP of ours are, without exaggeration or hyperbole, war criminals.
posted by DU at 11:38 AM on May 14, 2009 [5 favorites]

"There is overwhelming evidence that the Bush administration created an entire PR machine to spin for Iraqi involvement in 9/11."

Well, no. Again, that's a popular thing for opponents of the Bush admin to say, but it's hyperbolic and quite possibly wrong. They were worried, and perhaps justifiably so, about Al Qaeda and Iraq, that is certain. They said so. And they discussed what to do about both quite often and sometimes openly. They solicited studies--all of which were taken into consideration--from many government agencies (e.g., the State Department's dissent). In the end, they made a call--both on the use of "torture" (whatever that means) and on what to do about Afghanistan and Iraq. You see malice aforethought, and even conspiracy. You may be right. But maybe the Bushies were just scared and trying to do their jobs. I honestly don't know.
posted by MarshallPoe at 11:39 AM on May 14, 2009

Lindsay Graham has to play along or risk being outed.

Outed as what? A moron? I think the cat's out of the bag on that one.

I was thinking douchebag, but he kicked that closet door wide open long ago.
posted by ryoshu at 11:39 AM on May 14, 2009

Since there is no widely-accepted definition of "torture" (at least in this context), then we can't really say whether "it" is effective or not because we don't know what "it" is. That's not to say that we can't judge the general effectiveness (and appropriateness) of different interrogation techniques. We can and should. But the word "torture," in the present case, just doesn't move us very far down that road.

If you read the Geneva Conventions or the Convention Against Torture, you'll find more than adequate definitions for this and any other context. You'll also find the reasons that moving down the "is it effective" road is pointless. Whether it produces useful intelligence or not does not change the fact that it is illegal, unAmerican, and inhuman. People who approve of it are sadists. People who allow themselves to be made to do it in spite of their reservations are diminished. People who are victims of it are martyrs. We should not be engaging in these practices for any reason, and there's no reason here for doing it anyway.
posted by Kirth Gerson at 11:40 AM on May 14, 2009 [6 favorites]

I'm not sure that I would have done any different if I were in their shoes.

That is fucking vile and I feel sorry for you.
posted by Optimus Chyme at 11:40 AM on May 14, 2009 [1 favorite]

Also, you dodged the question on the incompetence of the CIA. Even if you assume waterboarding isn't torture, it's still known to be ineffective. So: Are you or are you not calling the CIA incompetent?
posted by DU at 11:40 AM on May 14, 2009

"The only "confusion" is from mud thrown in the water by torture apologists such as yourself."

Just why you are claiming I am a "torture apologist" I can't understand. But that is a side issue. In Through the Looking Glass, Humpty Dumpty famously tells Alice “When I use a word, it means just what I choose it to mean—neither more nor less.” Well, I'm sorry to say that that is not the way it works, as you well know.
posted by MarshallPoe at 11:42 AM on May 14, 2009

You see malice aforethought, and even conspiracy.

Considering the Bush administration planned to a war on Iraq before taking office, I would see that, yes.
posted by Blazecock Pileon at 11:43 AM on May 14, 2009 [3 favorites]

Just why you are claiming I am a "torture apologist" I can't understand.

Would you submit to a waterboarding session?
posted by Blazecock Pileon at 11:43 AM on May 14, 2009 [1 favorite]

I think we can all agree that filling a person's nasal passages and throat with water until the person is nearly asphyxiated six times per day for a month is not acceptable under any reasonable moral code. Not to mention all the harmful stress positions, beating, sleep deprivation, sexual humiliation, and any other acts that were committed by countries to which we rendered prisoners.

However, if you insist that all this is not torture, allow me to enlighten you. Here is the definition of torture from the UN Convention Against Torture, which the US has signed and ratified:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

– Convention Against Torture, Article 1.1

That, my friend, is what the fine legal minds of the Bush cadre want you to believe does not include 183 counts of near-drowning of a prisoner in one month. Don't fall for their bullshit - this is the "Saddam Hussein is helping al Qaeda" shit all over again.
posted by Salvor Hardin at 11:47 AM on May 14, 2009 [6 favorites]

Would you submit to a waterboarding session?

There's a line and I'm pretty sure Dick Cheney and Sean Hannity are at the front.
posted by ryoshu at 11:47 AM on May 14, 2009

Just why you are claiming I am a "torture apologist" I can't understand.

Because you just stated "So Bush and the CIA did what they did to the guys they had on hand to find out what they could. I'm not sure that I would have done any different if I were in their shoes."

You would torture another person. It is apparently not immoral or unjust to you. You are a torture apologist.
posted by Optimus Chyme at 11:47 AM on May 14, 2009 [2 favorites]

Just why you are claiming I am a "torture apologist" I can't understand.

A torture apologist is one who defends or justifies torture. And I quote: Bush and the CIA did what they did to the guys they had on hand to find out what they could. I'm not sure that I would have done any different if I were in their shoes.

In Through the Looking Glass, Humpty Dumpty famously tells Alice “When I use a word, it means just what I choose it to mean—neither more nor less.”

So you are just choosing to completely rewrite reality and pretend the ICRC was never brought up or even exists? Or are you one of those nutjobs that thinks the Geneva Conventions don't apply to The Exceptional States of America?
posted by DU at 11:48 AM on May 14, 2009 [3 favorites]

They worked on jesus.

Now, now. While he probably did have a face that was ripe for "random extra screening" at airports, I don't think Jesus ever actually admitted to any Al Qaeda connections.
posted by rokusan at 11:52 AM on May 14, 2009

They were worried, and perhaps justifiably so, about Al Qaeda and Iraq, that is certain. They said so. And they discussed what to do about both quite often and sometimes openly. They solicited studies--all of which were taken into consideration--from many government agencies (e.g., the State Department's dissent). In the end, they made a call--both on the use of "torture" (whatever that means) and on what to do about Afghanistan and Iraq.

I don't believe this is accurate. There's some very clear evidence that they used 9/11 as a pretext for invading Iran, which had been on their agenda all along, that they deliberately stovepiped intelligence to make the case for war, ignoring anything that argued against it, and that they slandered anyone who questioned them, going to far as to out a CIA operative to undermine the fact that her husband's intelligence gathering mission didn't come back with the answers they wanted. Perhaps they did think there were weapons of Mass Destruction in Iraq and that the country was involved in 9/11, but, if so, it wasn't because there was evidence to support it, but, instead, because they really, really wanted to believe it. So, when they got there and produced nothing that supported their claims, they did what a lot of countries do -- they turned to torture to manufacture evidence -- the same "evidence" that Cheney is now insisting be revealed.

I don't trust it. If you torture someone into admitting he is a witch, and that his neighbor is a witch, and they were planning a Black Mass, and you put him in jail, and his neighbor in jail, and no Black Mass happens, that doesn't mean you have prevented a Black Mass.

There is a historical record here, and I think it deserves to be addressed, not minimized into some "they were just trying their hardest" narrative that excuses the unexcusable.
posted by Astro Zombie at 11:55 AM on May 14, 2009 [5 favorites]

Clearly there is confusion on the issue of what "torture" is or there wouldn't be so much debate about it.

What does "possession" mean? Is your car in your possession? How about your TV? If the cops find drugs at your house but you aren't there, can they charge you for possession?

Possession is defined explicitly in the law. Torture is not. Is water-boarding torture? Not everyone agrees, and that matters because there is no statute that states "water-boarding is torture."

Secondly, I think many of you overstate the case against Cheney. Cheney cannot legally order anyone to torture, because Cheney is not in the chain of command anywhere. The President can do these things of course, but Cheney was not the President. And Cheney actions are not imputed to the President, because again, he is not in the chain of command. The fact that people listened to Cheney is purely a function of his political power within the administration, but legally they were not obligated to listen to him.

Furthermore, what is brilliant about Cheney is the way he managed to get the Office of the VP to fall under the umbrella of the executive privilege. The VP is part of the executive branch, after all, so that argument isn't a stretch. But Cheney found a gap between VP's official authority and the president's authority as chief executive in which the executive privilege could still apply. Provided you have a VP with the chutzpah and the clout to get peiople to do what he tells them (a) even though they don't actually have to and (b) without asking the president to sign off on it, that's a recipe for a de facto dictatorship. Add to that a President who is so obviously an idiot that people would stop going to him in the first place, and you now have a situation where the primary decision maker isn't legally accountable, isn't monitored, and is unrestrained.

But don't confuse the egregiousness of his actions with obvious crimes. Crimes must be stated explicitly in the statutes. Unless you are prepared to bring a criminal conspiracy charge against him, and you can identify and get the testimony of everyone in the chain all the way down to the guy who poured the water, you are never going to prove your case. Simply concluding that bad stuff happened on his watch isn't enough, because by the way, bad stuff is still happening under Obama's watch.

And finally, I'll point out that the Obama administration is very aware of Cheney's little loophole, but they've done nothing to close it.
posted by Pastabagel at 11:55 AM on May 14, 2009 [2 favorites]

Invading Iraq, rather.
posted by Astro Zombie at 11:55 AM on May 14, 2009

Oh, and there's no reason to stop with international law - there are home-grown laws for prosecuting people who torture people:

US Code Title 18 Part I Chapter 113c S2340:

"(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
----(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
----(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
----(C) the threat of imminent death; or
----(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;"

There really isn't any reasonable debate about whether or not the US government tortured people. The only question is whether or not Obama and Holder have the balls to carry out justice as they swore to do and prosecute the people who did this.
posted by Salvor Hardin at 11:55 AM on May 14, 2009 [8 favorites]

There really isn't any reasonable debate about whether or not the US government tortured people.

I should qualify that, now that my blood pressure has come down a little. IANALawyer; I'm sure a good lawyer could find several clever Latin phrases that call into question whether or not certain actions fit under a definition.

But as a person of approximately average intelligence, it seems pretty plain to me. And if it doesn't fit, we should make a new definition so it does fit.
posted by Salvor Hardin at 12:01 PM on May 14, 2009

Somebody has to start asking McCain what his opinion of all of this is.
posted by Ironmouth at 12:11 PM on May 14, 2009 [1 favorite]

In case you feel like signing something: Tell Holder: It's time to prosecute Cheney.
posted by muckster at 12:13 PM on May 14, 2009

Oh, and there's no reason to stop with international law - there are home-grown laws for prosecuting people who torture people:

US Code Title 18 Part I Chapter 113c S2340:

So, title 18 applies to military reservations in other countries?
posted by Ironmouth at 12:13 PM on May 14, 2009

Clearly there is confusion on the issue of what "torture" is or there wouldn't be so much debate about it.

That's just it, there wasn't debate about it, there was a memo put together by two Bush Administration connected Justice Department lawyers that laid out a specious argument saying that what most rational humans and legal scholars define as torture is, in fact, not torture and the Bush Admin ran with it. (and those two lawyers were subsequently rewarded greatly)
posted by Pollomacho at 12:14 PM on May 14, 2009

So, title 18 applies to military reservations in other countries?

So you are saying that Guantanamo Bay is no longer US Territory?
posted by Pollomacho at 12:16 PM on May 14, 2009

Third option being that he [Lindsey Graham] was never anything more than a stupid hillbilly.
posted by goethean at 1:16 PM

Hey, don't lower the hillbillies to that scumbag's level. One of the kindest people I know goes by the name "Hillbilly."
posted by marxchivist at 12:16 PM on May 14, 2009

But as a person of approximately average intelligence, it seems pretty plain to me. And if it doesn't fit, we should make a new definition so it does fit.

I think you are asking for (here comes the latin) an ex post facto law.

Ex post facto laws are prohibited by the Constitution.

My point has been, as always, that prosecutions are much, much harder than people think. You can't just read code sections and say "a-ha that's it, we've got them." It is far more complicated.
posted by Ironmouth at 12:17 PM on May 14, 2009

There is a historical record here, and I think it deserves to be addressed, not minimized into some "they were just trying their hardest" narrative that excuses the unexcusable.
posted by Astro Zombie at 2:55 PM on May 14

Oh come on. The "inexcusable"? What precisely is "inexcusable" about the invasion of Iraq in 2003 that was excusable in 1991, or in twelve intervening years in which the US repeatedly bombed Iraq, shot down their planes, etc. (8 of which were during a democratic administration).

The officially stated policy of the United States in 1998 was to replace the regime in Iraq. Why? Because they violated "international law"? Says who? And where is international law written down? Who writes it? Who are the governed, and have they given their consent?

Please note that regime change in the Soviet Union was never official US policy. For whatever reason, both parties wanted Saddam Hussein out of power in Iraq. 9/11 was not a pretext, it was a justification for changing US foreign policy in the region. Iraq did not cause 9/11. But the very open, public, and repeated intransigence of Saddam's regime led to the accurate belief in that region that the US was not willing to engage directly and forcefully it's enemies in the region. The fact that the US chose, after the 9/11 attacks, to now engage directly and forcefully its most public opponent is not inexcusable, it is totally obvious, and that's why both parties supported it in concept if not Bush's particular execution of it. Was the US simply going to allow the failed policy against Saddam to continue? Until when? He has a stroke and resigns like Castro in Cuba? The oil under Iraq isn't going to wait 40 years.

The question you should be asking, that no one is asking, is whether a democratically stable government was ever really the objective, or is what we have now, an unstable region, the true objective. That instability guarantees US military involvement in a strategic resource-rich region to the exclusion of all other major world powers. The instability justifies continued Israeli military engagement of its neighbors. It enables Saudi Arabia to feel protected even as it public requests us to scale back our presence on their soil.
posted by Pastabagel at 12:19 PM on May 14, 2009 [2 favorites]

So, title 18 applies to military reservations in other countries?

"(3) ''United States'' includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501(2) of title 49"

See that United States Flag displayed over the base?

That denotes United States Jurisdiction.
posted by mikelieman at 12:22 PM on May 14, 2009 [2 favorites]

What precisely is "inexcusable" about the invasion of Iraq in 2003 that was excusable in 1991, or in twelve intervening years in which the US repeatedly bombed Iraq, shot down their planes, etc. (8 of which were during a democratic administration).

Did I say those earlier examples were excusable? But, since it's the subject of this thread, the new wrinkle is torture, which is specifically what we are being asked by some to excuse.
posted by Astro Zombie at 12:24 PM on May 14, 2009

Pasta, The precedent of prosecuting individuals for waterboarding as an act of torture is of no legal consequence here? (Assuming this is as cut and dry as people would have me believe. I would love to see a link that does not point me to someones blog for confirmation.)
posted by batou_ at 12:26 PM on May 14, 2009

I mean, one of the reasons these techniques have survived for about 500 years is apparently they work.
Of course it works, it will make the poor bastard say whatever you wany him to say. That's the point right?
posted by PenDevil at 12:29 PM on May 14, 2009

By contrast, there is much less debate about what a "chair" is (though I imagine there is some).

A chair is a thing you tie people to while not torturing them.
posted by Combustible Edison Lighthouse at 12:30 PM on May 14, 2009 [6 favorites]

I think you are asking for (here comes the latin) an ex post facto law.

Ex post facto laws are prohibited by the Constitution.

My point has been, as always, that prosecutions are much, much harder than people think. You can't just read code sections and say "a-ha that's it, we've got them." It is far more complicated.
posted by Ironmouth at 3:17 PM on May 14 [+] [!]

Mmm - your "clever latin phrases" have defeated me. It appears that USC 2340 was written after most of the torture had already happened. Damn you and your dead language.

But it's still in pretty clear violation of the UNCAT, as far as I can tell. You're right that prosecutions are hard, but that's a lame excuse for not investigating.
posted by Salvor Hardin at 12:31 PM on May 14, 2009

What nobody has pointed out were the closing words by Ms. Pelosi at her press conference.

"...and that is why we need a truth commission to look into the issue."

Given her very senior position, it seems to me to be an inevitability. Indeed, she wouldn't have said it if she didn't have enough support within the Democratic ranks to make it a reality.

This, obviously, will not end up looking good for Cheney, who will not be able to manipulate our government's intelligence agencies anymore, selectively stovepiping intelligence to defend himself against the ample evidence of his prior stovepiping / reality distortion / lies.

The question, perhaps, is whether the Obama administration will see to it that the CIA and other intelligence sources cooperate fully with the House and Senate Democrats, or whether they keep stonewalling America -- and its lawmakers -- in order to safeguard intelligence for "national defense" purposes.

The House and Senate Democrats smell blood, but the Obama administration might be looking at this tactically, willing to give the Democrats some leeway, but concerned about giving them so much that it makes them either seem vindictive or so that it the kind of damning information that would necessitate them taking things further, moving from fact finding to actual criminal proceedings.

Either way, odds are good that there are practically no allegations that can be made against the Bush administration that will really matter to 90% of Republicans, no matter how damning the evidence. Partisan realities more or less guarantee that anything can and will be justified by the Republican Party, who, in the event of a serious problem, will start selectively and anonymously leaking classified intelligence to defend their actions, crying "foul!" all the way.
posted by markkraft at 12:37 PM on May 14, 2009

9/11 Commission ordered torture

Ok, upon reading those articles, there isn't any evidence that the 9/11 Commission ordered torture. There isn't any evidence that follow-up questions asked on behalf of the Commission were asked in conjuction with torture.

It is so, so, so important that we get each and every fact on this one right. We need to make our case air-tight.

That's why I think prosecutions will not move the ball forward on this and will be a hinderance. Criminal defendants have rights which will get in the way of an investigation. Administrative investigations will be put on hold until prosecutions are completed--standard operating procedure in governmental investigations of its own personnel.

We need the truth more than convictions--getting convictions will make getting the truth harder becuase of the way our criminal justice system operates.
posted by Ironmouth at 12:39 PM on May 14, 2009 [3 favorites]

There is quite a bit of name-calling and distortion of what people have written in this thread. I'm not quite sure how that helps move the discussion forward, but I'm sure someone will explain.

Clearly some of you have reached a moral clarity about issues and events that I can't claim. It apparently upsets you to hear that this is the case--that anyone would express a certain vexation and confusion--about these things. But I am vexed and confused, and I know a lot of my very well-intentioned and very patriotic friends are as well. These things are complicated, and simplifying them by calling people names and distorting their positions--while very comforting--really doesn't do us any good.

So pardon me if I don't shout, scream, snark, or call people names--the issue is just too serious for that.
posted by MarshallPoe at 12:39 PM on May 14, 2009 [1 favorite]

The precedent of prosecuting individuals for waterboarding as an act of torture is of no legal consequence here?

The difference here is the prosecutions were related to Japanese military personnel torturing American POWs and innocent civilians.

But it's still in pretty clear violation of the UNCAT, as far as I can tell. You're right that prosecutions are hard, but that's a lame excuse for not investigating.
posted by Salvor Hardin at 3:31 PM on May 14

Saddam's government was even in clearer violation of UNCAT. For decades. But regardless, violations of UNCAT do give rise to a criminal action within the United States. That would be the jurisdiction of a International Criminal Court which no world power, including China, Russia, the U.S. and India, has joined.
posted by Pastabagel at 12:39 PM on May 14, 2009

What precisely is "inexcusable" about the invasion of Iraq in 2003 that was excusable in 1991

iraq invaded kuwait in august 1990 just fyi
posted by Optimus Chyme at 12:41 PM on May 14, 2009 [1 favorite]

It apparently upsets you to hear that this is the case--that anyone would express a certain vexation and confusion--about these things.

When you consider that what you elided by saying "these things" was "torture," yes, I am upset that you are confused about its immorality and inhumanity.

These things are complicated

No, they're really not. Torture is wrong, no matter what perverse reasoning you use to justify it.
posted by Optimus Chyme at 12:44 PM on May 14, 2009 [2 favorites]

Clearly some of you have reached a moral clarity about issues and events that I can't claim.

Let me ask you to explain further. Is it that you lack moral clarity about whether torture is wrong, or just what constitutes torture, which would then make it wrong? And what would you require to clarify?
posted by Astro Zombie at 12:44 PM on May 14, 2009 [3 favorites]

However, if you insist that all this is not torture, allow me to enlighten you. Here is the definition of torture from the UN Convention Against Torture, which the US has signed and ratified:

Is this the part where we get to listen to torture apologists weasel around with what "severe" mental and physical suffering is? That's always fun.

I heard Graham say that asinine thing about torture having worked for 500 years and wished I could punch him right through my radio. He's either depraved or stupid.

Those are pretty much your choices if you defend torture or spend more than five seconds going "Well, how do we define "torture"? How do we define "severe" mental or physical suffering?"

Depraved or stupid. Pick one.
posted by rtha at 12:46 PM on May 14, 2009 [3 favorites]

worth quoting from another post:
This program was Dick Cheney's. Cheney may have taken actions not authorized by the President of the United States. These memos are possibly going to turn out to be after-the-fact justifications for actions not authorized by George W. Bush. And the purpose of these unauthorized actions would have been to provide evidence that Al Qaeda and Saddam Hussein were working together. Where Cheney, the Iraq war run-up and torture meet is going to be one hell of a radioactive place.
This is more than speculation. On Sunday's Face the Nation, Cheney was asked if Bush approved the program. Cheney responded that the President authorized it in its "basic form" and gave what could only be described as a very woozy answer on the subject.
Now I watched that clip Monday night. Not 5 minutes later, I turned to the rerun of Hardball. Chris Matthews was laughing about Cheney going to jail as he wound up a segment with Pat Buchanan and Lawrence O'Donnell. O'Donnell spoke up and said that "it won't be for what you think, Chris." "It will be for Cheney usurping the President of the United States."
posted by adamvasco at 12:47 PM on May 14, 2009

rokusan: "I don't think Jesus ever actually admitted to any Al Qaeda connections."

Not so!

Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me. - Matthew 25:40

The "it" in this case being having his genitals sliced with a scalpel.

But as MarshallPoe observes, these things are complicated and simplifying them really doesn't do any good.
posted by Joe Beese at 12:48 PM on May 14, 2009 [1 favorite]

"I mean, one of the reasons these techniques have survived for about 500 years is apparently they work..."

So... how does someone so connected manage to not notice all of those professional interrogators out there who have said that torture doesn't work?

All it does is rapidly get the person being tortured to say whatever it is they think the interrogators want to hear, while leading inevitably to horribly damaging claims of abuse.
posted by markkraft at 12:50 PM on May 14, 2009 [1 favorite]

No confusion about "moral clarity" is required when it comes to discussions of torture. It is wrong. It is always wrong. The only explanation for torturing someone is if you are off-your-rocker-buttfuck-crazy. Other than that? Wrong and inexcusable.

(Also, it doesn't work. Or would you rather believe someone like Cheney over, I don't know, actual successful interrogators who get the info by talking to the subject, and know that torture doesn't work?)
posted by rtha at 12:50 PM on May 14, 2009 [1 favorite]

Clearly some of you have reached a moral clarity about issues and events that I can't claim.

We can agree on that!
posted by diogenes at 12:51 PM on May 14, 2009 [1 favorite]

No, they're really not. Torture is wrong, no matter what perverse reasoning you use to justify it.
posted by Optimus Chyme at 3:44 PM on May 14

Guess what? Killing is wrong too. Here are six instances where killing is lawful:

1. Self-defense
2. Defense of another
3. Home invasion
4. As a criminal penalty for capital crimes
5. Abortion
6. As an agent of the military in war or in the execution of a mission authorized by the President.

It seems illogical that killing can be acceptable but something less severe than killing can never acceptable.

And to get back to the original point, to prosecute Cheney, you'd have to prove that he told someone explicitly to torture, and that he did not merely say "Go get the guys and find out what they know."
posted by Pastabagel at 12:54 PM on May 14, 2009 [1 favorite]

But I do know this: "torture" is what you call interrogation techniques you don't like. Since there is no widely-accepted definition of "torture" (at least in this context), then we can't really say whether "it" is effective or not because we don't know what "it" is

For the Geneva Convention to have any meaning whatsoever, there has to be some general agreement among the signatories on what constitutes torture, yes? Or do you believe it's an utterly meaningless document?
posted by Combustible Edison Lighthouse at 12:54 PM on May 14, 2009

That's why I think prosecutions will not move the ball forward on this and will be a hinderance. Criminal defendants have rights which will get in the way of an investigation. Administrative investigations will be put on hold until prosecutions are completed--standard operating procedure in governmental investigations of its own personnel.

We need the truth more than convictions--getting convictions will make getting the truth harder becuase of the way our criminal justice system operates.
posted by Ironmouth at 3:39 PM on May 14 [+] [!]

Well, I agree that convicting the guilty parties would just be a nice bonus - the most important thing is that the secrecy ends. But I'm confused about something: wouldn't the precursor to a prosecution be an investigation? I was under the impression that an investigation (the purpose of which would be to gather and expose information about crimes) would be the first step for a special prosecutor. So how does a prosecution get in the way of getting the truth?
posted by Salvor Hardin at 12:56 PM on May 14, 2009

So, title 18 applies to military reservations in other countries?

"(3) ''United States'' includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501(2) of title 49"

See that United States Flag displayed over the base?

That denotes United States Jurisdiction.

So what do 18 U.S.C. s 5 and 18 U.S.C. s 7 and 49 U.S.C. s 46501(2) have to say?

And what does an "area under the jurisdiction of the United States" constitute.

These things count. The fact that a U.S. flag flies over a base does not necessarily mean jurisdiction applies. What type of jurisdiction are you talking about, subject-matter or personal?

You can't just read code sections. I do this for a living.

Lets break it down.

First, s 5 states that: "The term “United States”, as used in this title in a territorial sense, includes all places and waters, continental or insular, subject to the jurisdiction of the United States, except the Canal Zone."

This of course is subject to case law. Since my Lexis plan doesn't cover that part of US law, I can't help you there.

s 7 is more complex:

"§ 7. Special maritime and territorial jurisdiction of the United States defined
How Current is This? The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes:
(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.
(2) Any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line.
(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.
(4) Any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States.
(5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.
(6) Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard.
(7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.
(8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.
(9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act—
(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and
(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.
Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261 (a) of this title."

So we see a lot of qualifiers here. First, we learn that military bases in foreign countries are US jurisdiction insofar as the person against whom the crime is being committed is a national of the US as defined in s 101 of the Immigration and Nationality Act. So, it appears that these code sections do not apply to foreign nationals.

It is also clear that the terms of treaties supercede those of these code sections.

Ok turning to 49 U.S.C. 46501(2):
(2) “special aircraft jurisdiction of the United States” includes any of the following aircraft in flight:
(A) a civil aircraft of the United States.
(B) an aircraft of the armed forces of the United States.
(C) another aircraft in the United States.
(D) another aircraft outside the United States—
(i) that has its next scheduled destination or last place of departure in the United States, if the aircraft next lands in the United States;
(ii) on which an individual commits an offense (as defined in the Convention for the Suppression of Unlawful Seizure of Aircraft) if the aircraft lands in the United States with the individual still on the aircraft; or
(iii) against which an individual commits an offense (as defined in subsection (d) or (e) of article I, section I of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation) if the aircraft lands in the United States with the individual still on the aircraft.
(E) any other aircraft leased without crew to a lessee whose principal place of business is in the United States or, if the lessee does not have a principal place of business, whose permanent residence is in the United States.

So, if there was torture aboard a CIA or military aircraft, the section would apply.

As you can see, the question is far, far more complex than you would like it to be.

This is why the question of torture is best settled politically. If you indicted tommorrow the first convictions would be in 2013 at the earliest. Those convictions would be appealed and the torturers would be out on bond until the appeals were done. I think you'd see the application of the sentence in 2016 or 2017.
posted by Ironmouth at 12:58 PM on May 14, 2009 [2 favorites]

Clearly there is confusion on the issue of what "torture" is or there wouldn't be so much debate about it. By contrast, there is much less debate about what a "chair" is (though I imagine there is some).

If chairs were considered contraband, and Dick Cheney had been observed sitting on a platform supported by legs and with some kind of backrest, you can bet that there would be declarations from the US Right that it was no chair, or at best some kind of stool. And the New York Times would describe it as an enhanced seating device.
posted by i_am_joe's_spleen at 12:59 PM on May 14, 2009 [4 favorites]

Now, now. While he probably did have a face that was ripe for "random extra screening" at airports, I don't think Jesus ever actually admitted to any Al Qaeda connections.

You try getting through security with nails in your hands!
posted by Pollomacho at 1:00 PM on May 14, 2009 [3 favorites]

Pasta, you said they are different, but why? Is this not a precedent that waterboarding has been defined as torture?
posted by batou_ at 1:03 PM on May 14, 2009

And to get back to the original point, to prosecute Cheney, you'd have to prove that he told someone explicitly to torture, and that he did not merely say "Go get the guys and find out what they know."

Not quite. First, is Cheney authorized to order interrogations? Unless specifically authorized by the President, no. He has the power to break ties in the Senate. What did Cheney do? Who authorized him to do it?

Second, making a statement like that sure can be an order for torture. Every mob boss has said "take care of this" with everyone knowing what he meant. The government gets convictions on this sort of conversation time and time again.
posted by Ironmouth at 1:04 PM on May 14, 2009

It seems illogical that killing can be acceptable but something less severe than killing can never acceptable.

Hey, thanks, Pastabagel. I guess there's an exception to everything. Tell you what: you list for me the circumstances in which rape is justified - and you have to really mean it, and stake your name to it - and I'll bow out of this thread.

Killing a man is fundamentally different from torturing him. You might as well have tried to "zing" me by listing instances in which stealing a loaf of bread is acceptable.
posted by Optimus Chyme at 1:05 PM on May 14, 2009 [4 favorites]

Colin Powell's chief of staff says the primary reason they tortured, before there even was a legal rationale, was to justify the future invasion of Iraq.

When they couldn't justify it they did it anyway.

Hundreds of thousands died.

The problem with the Bush administration is that many of them are war criminals.

The problem with Obama is that he just wants all this to go away.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 1:05 PM on May 14, 2009

(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

Doesn't this include Guantanamo Bay?

(9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act—

Since it says "offenses committed by or against...a national of the United States ...", wouldn't that include torture committed by a US CIA interrogator against a foreign national?

I'm not trying to present the prosecution's case right here, and I still am more interested in an investigation than a prosecution, but as long as you brought those up, could you explain what I'm missing?
posted by Salvor Hardin at 1:09 PM on May 14, 2009

The only explanation for torturing someone is if you are off-your-rocker-buttfuck-crazy. Other than that? Wrong and inexcusable.

Hold on a second. Killing is also wrong, but I listed some instances where itit not only excusable, but expected.

You want moral clarity. Sorry, there isn't any. A suicide bomber believes his actions are moral. You don't. That's moral ambiguity, and that's always the environment at the boundary between two cultures. That's why we have law, to take moral ambiguity out of the equation.

Pasta, you said they are different, but why? Is this not a precedent that waterboarding has been defined as torture?
posted by batou_ at 4:03 PM on May 14

Things are precedent only to the extents that the facts are the same or an least comparable. Why is there a distinction made about POWs? Why do international conventions on war require warring parties to wear identifiable uniforms and not intermingle with civilians or disguise themselves as medical or religious personnel?

They made these distinctions you only get treatment as a prisoner of war if you are behaving like a soldier of an enemy government. You don't punish the soldier for the war he was ordered to fight - it is not really his choice to fight at that place and time. If you do not obey the rules of war, you are some psychopath running around killing people, and you are not accorded the respectful treatment of a soldier.
posted by Pastabagel at 1:12 PM on May 14, 2009 [1 favorite]

How to root out dishonesty: Just ask the apologist if he will submit himself to treatment that everyone but him agrees is torture.
posted by Blazecock Pileon at 1:18 PM on May 14, 2009 [2 favorites]

MarshallPoe: Clearly some of you have reached a moral clarity about issues and events that I can't claim.

There's two questions:

1. Has the US been torturing prisoners?
2. In the aftermath of the 9/11 attack, was it justified in doing so?

Regarding (1), the answer is yes. If this isn't clear to you, please read this New Yorker article by Jane Mayer, describing the interrogation of Manadel al-Jamadi at Abu Ghraib. For how this became US policy, see this Vanity Fair article by Philippe Sands.

Regarding (2), the answer is no. The laws of war (including treaties which the US has signed and ratified) are clear: non-combatants, including prisoners, are protected. They can't be tortured, raped, summarily executed, starved, or worked to death. Torturing prisoners in the name of bringing democracy to the Middle East is particularly ludicrous. See this lecture by Alberto Mora, former Navy General Counsel.

five fresh fish: The CIA is an entity unto itself--

The Cossacks work for the Czar; the CIA works for the President. If the CIA assassinates a foreign leader or overthrows a foreign government, it's because the President ordered them to do so. See Thomas Powers, The Failure.
posted by russilwvong at 1:18 PM on May 14, 2009 [3 favorites]

These things are complicated

No, they're really not. Torture is wrong, no matter what perverse reasoning you use to justify it.

The moral case is uncomplicated. It was torture from a moral point of view. The legal case is massively complicated. Most crimes are simple--they occur on US soil, they are not authorized by higher authority, they are not done under color of law, the perpetrators are not protected in some sense by government authorities, both the perpetrator and the criminal are US citizens, etc. These crimes are very difficult to prosecute because of these factors.

Furthermore, there aren't significant numbers of people in the nation who consider the decisions made in the past to be correct, either because of personal loyalty to those who commited the crimes or emotional hatred for those who were the victims of the crime. These factors complicate prosecution far more than a light reading of the statutes and treaties in question might provide.
posted by Ironmouth at 1:20 PM on May 14, 2009

Blazecock Pileon: "How to root out dishonesty: Just ask the apologist if he will submit himself to treatment that everyone but him agrees is torture."

I don't think MarshallPoe is claiming that "enhanced interrogation techniques" [somewhere, Eric Blair is laughing bitterly into a stiff drink] aren't terrible to experience.

No, I think the litmus test for intellectual dishonesty is if they would advance exactly the same argument if it was the other political party involved.
posted by Joe Beese at 1:24 PM on May 14, 2009

The problem with Obama is that he just wants all this to go away.

As I've said before, I'm not so sure that's actually the case... One interesting thing Obama said in his remarks on the decision to try to delay the release of the new prisoner abuse pics that I haven't seen get much attention was this bit:

Releasing the photos could have a "chilling effect" on further investigations of detainee abuse without adding to the understanding of past abuses, he said.

What he seemed to be suggesting here was this: If the release of the photos goes forward now, just as we're entering the time of year that we've historically seen the largest upticks in violence and US troop fatalities in Iraq and Afghanistan, then critics of investigatory proceeding when the possible release of such evidence comes up again in the future, might point to the increased troop casualties coinciding with the release of these photos and use the correlation (whether it's actually causal or not) to argue in the courts for suppressing the release of similar evidence on the grounds that doing so would jeopardize the safety of the troops.

If these critics could point to a specific increase in troop casualties roughly coinciding with the release of these photos, then they'd be in a strong position to argue in court that the release of additional evidence of a similarly inflammatory nature could put US soldiers' lives at increased risk.

Although for some reason, the media headlines aren't being very clear in reporting on this, the administration is only requesting an indefinite delay in the release of the photos; they haven't invoked states secrets to do an end run around the courts. That can't be an accident. Ultimately, even if the courts grant the delay, its previous ruling in favor of the release still stands and the administration still has to release the photos eventually, unless it files an appeal to the supreme court, which it's previously shown itself reluctant to do. So I think critics of the administration and proponents of taking steps toward eventual torture-related prosecution may be missing a subtle but important point here: Maybe now really isn't the best time to release the latest torture photos, if doing so could potentially impede future congressional investigations or other eventual legal actions.
posted by saulgoodman at 1:26 PM on May 14, 2009 [1 favorite]

Pasta you wrote: Possession is defined explicitly in the law. Torture is not. Is water-boarding torture? Not everyone agrees, and that matters because there is no statute that states "water-boarding is torture."

I was not discussing whether these people are prisoners of war or not. It is moot to my point. You suggested waterboarding may not be torture do to the fact that it is not defined as torture. However, precedent has been set that it is. Whether laws can be brought to bear to punish the people responsible is a different legal question.
posted by batou_ at 1:28 PM on May 14, 2009

A handy guide to progression of torture apology arguments
1) They were acting in good faith. Who among us wouldn't torture? I would!
2) No clear definition of torture
a) I for one think eating at Taco Bell is torture. Do you want to outlaw that?
3) Torture isn't against the law
a) Okay, but what was done wasn't specifically illegal
b) Okay, but maybe jurisdictional matters or some loophole makes that not matter
c) Prosecutions are hard, and therefore should not be attempted
4) Previous administrations did bad things, and you support them
a) I know because I declare it!
b) This is just politics. Not criminalizing politics is the greatest strength of our system.
5) There are other kinds of bad things people do, and you think they're okay
a) I know because I declare it!
b) Logically you must be for everything or against everything. Your hypocrisy on organic farming justifies my hypocrisy on torture.

A few suggestions:

--If you want to win arguments, actually address the arguments in question. Childish, emotional arguments result in you losing. Obama is the first politician to take the stupid arguments of the right head on and make them explain them. Don't be like right wingers and play dumb Sean Hannity-style games.

--If you want to convince, respect the points your adversaries have made and don't group them together to try and discredit legitimate points from frivolous ones.

--Calling people names, such as "torture apologists" will not win you any arguments, especially when they are opposed to torture but think that prosecution isn't the way to go.
posted by Ironmouth at 1:28 PM on May 14, 2009 [5 favorites]

five fresh fish: The CIA is an entity unto itself--

The Cossacks work for the Czar; the CIA works for the President. If the CIA assassinates a foreign leader or overthrows a foreign government, it's because the President ordered them to do so. See Thomas Powers, The Failure.

A point worth emphasizing.
posted by Ironmouth at 1:30 PM on May 14, 2009 [1 favorite]

Ooops meant to include your line on how this does not matter because they were not POWs.
posted by batou_ at 1:31 PM on May 14, 2009

How to root out dishonesty: Just ask the apologist if he will submit himself to treatment that everyone but him agrees is torture.

Yep. Chris Hitchens was an apologist for torture and he was so sure of himself that he agreed to be waterboarded to show that it wasn't torture. Immediately after undergoing the procedure, he said "yep its torture!"

I'm still waiting on Sean Hannity to submit to waterboarding.
posted by Ironmouth at 1:35 PM on May 14, 2009 [2 favorites]

Pastabagel: "to prosecute Cheney, you'd have to prove that he told someone explicitly to torture, and that he did not merely say "Go get the guys and find out what they know."

Report: Cheney office ordered waterboarding
posted by Joe Beese at 1:39 PM on May 14, 2009

Let me be clear here: I agree that what the US did was torture as that term is generally understood, and that it was wrong. Where I disagree is that I don't think that what was done meets the legal definition of 'torture' nor do the surrounding facts support a criminal charge against the Vice President of the United States. So if you launch a prosecution and it fails, what you end up doing is endorsing waterboarding as a legal interrogation technique.

Tell you what: you list for me the circumstances in which rape is justified - and you have to really mean it, and stake your name to it - and I'll bow out of this thread.

I don't think that rape is ever justified, nor does US law contemplate such a thing. But rape is routinely excused in US prisons, and judges have considered prison rape to be part of the punishment for ordinary crimes for which the official sentence is merely jail time. See also, and this.

Furthermore, torture is more analogous to killing in that is is a extreme dimension of the state's acknowledged authority to use physical force to enforce the law (clubs, tasers, dogs, etc). How much worse than a taser is waterboarding? You might argue that that means tasers should be illegal and maybe they should, but the law does not now consider tasers to be torture.

Frankly the best argument that waterboarding is torture under the law presented thus far is past US prosecution for waterboarding by Japanese soldiers, as as we discussed, that one is still problematic.

The solution to this is obvious - pass a law that says "waterboarding is torture." With democrats in congress and the white hosue, that should be easy, right?
posted by Pastabagel at 1:41 PM on May 14, 2009

Hold on a second. Killing is also wrong, but I listed some instances where itit not only excusable, but expected.

Hold on a second. Killing and torture are two different things. You might have to kill someone because he's about to kill you and you can't get away; would you torture someone because he's about to torture you?

You said It seems illogical that killing can be acceptable but something less severe than killing can never acceptable.

Optimus Chyme asked if rape is ever acceptable. Is clearly less severe than torture. So. Is it?
posted by rtha at 1:41 PM on May 14, 2009

The Bush Administration Homicides

Human Rights Investigator, Attorney John Sifton: Torture Investigation Should Focus on Estimated 100 Prisoner Deaths
posted by homunculus at 1:43 PM on May 14, 2009

Report: Cheney office ordered waterboarding
posted by Joe Beese at 4:39 PM on May 14

I hadn't seen that story, and it does change things considerably.
posted by Pastabagel at 1:44 PM on May 14, 2009

I previewed I swear to go. Two posts that cross in the night.

Do you really consider the sick threats (or warnings) of a small-minded judge to be the equivalent of a legal method of punishment? Is that actually the same to you as a legal system that says "You are suspected" (because the guys we tortured were not actually convicted of anything, remember) "of committing a heinous act. We sentence you to rape."

Prison rape being excused or made a joke out of is so far different from the president and v.p. of the United States saying "Do this" that they're not even in the same universe. What is the matter with you?

Torture was not used to enforce the law. It was used to try to gain information (ostensibly, anyway). Are you okay with torture being used to enforce the law? Would you be okay with prison guards torturing prisoners right here in the U.S., and having the legal right do to so? Would you be okay with police officers here in the U.S. having the legally backed ability to torture suspects? That is the equivalent.

(For the record: No, I don't think that long-term solitary confinement as it is used in U.S. prisons is okay. I believe it is torture. I believe it should be morally beneath us. It is wrong.)
posted by rtha at 1:49 PM on May 14, 2009

Report: Cheney office ordered waterboarding

Let's get this straight, so that we don't get called out on it for being wrong.

The linked report says Cheney did not order waterboarding. Cheney suggested that an Iraqi intelligence officer be waterboarded to get information. The American official in charge of the prisoner thankfully said no.

However, I doubt this report is the last word on the subject.
posted by Ironmouth at 1:50 PM on May 14, 2009

So if you launch a prosecution and it fails, what you end up doing is endorsing waterboarding as a legal interrogation technique.

Not pursuing a case would seem to do the very same thing.
posted by Blazecock Pileon at 1:58 PM on May 14, 2009 [2 favorites]

Pastabegel: I don't think that what was done meets the legal definition of 'torture.'

Ironmouth: I do think what was done meets the legal definition of torture.

Assuming that both parties agree on "what was done," then I can only conclude that there is some disagreement about what the word "torture" means.
posted by MarshallPoe at 2:01 PM on May 14, 2009

Apologizing for torture is an action, not a motivation. Every possible political victory has already been won against torture. Do you want laws against it? It is already completely illegal. It's in the fucking constitution, it's banned in multiple relevant laws. Do you want executive policy against it? Always and at all times the executive branch has claimed that it doesn't torture, and that torture is illegal. And yet, it happens anyway. The only way that it can actually be prevented is by severely punishing the people who order it or carry it out.

And now people are coming into this thread to "play dumb Sean Hannity-style games" trying to parse things one way or another, and pretty much making things up or playing dumb. All of the bullet points I put in have been used in this and other threads, multiple times. You're saying that I grouped them together unfairly, but they all seem pretty similar to me. And let's be honest, there are no prosecutions underway. No one has said, "let's prosecute everyone no matter what the evidence." The debate is about whether or not to even have an investigation. After awhile, there's no point trying to argue, and it's better to use shame. I disagree with Joe Beese in one respect: I don't think it's a purely partisan thing. I think a lot of people are simply emotionally unwilling to see Americans put on trial for war crimes.

The supreme court has already ruled that the U.S. has jurisdiction over Guantanamo. Obama's response was to move prisoners to Bagram.
posted by Humanzee at 2:01 PM on May 14, 2009 [1 favorite]

What nobody has pointed out were the closing words by Ms. Pelosi at her press conference.

"...and that is why we need a truth commission to look into the issue."

Don't call the game over before it's even begun.
posted by saulgoodman at 2:02 PM on May 14, 2009

http://www.nytimes.com/1983/03/20/us/around-the-nation-texas-sheriff-is-guilty-of-torturing-prisoners.html

I wonder how this happend WAY BACK DURING REAGAN, yet today it's all sorts of difficult to prosecute someone...

You prove my argument.

Please. Do you really think that prosecuting a local sheriff in the US is the same as prosecuting actions ordered by the President of the United States against non-citizens, purusant to his authority to conduct national defense, taking place in Poland?
posted by Ironmouth at 2:02 PM on May 14, 2009

Every possible political victory has already been won against torture.

WE JUS' GETTIN' STARTED HOSS
posted by Ironmouth at 2:04 PM on May 14, 2009

Hold on a second. Killing and torture are two different things. You might have to kill someone because he's about to kill you and you can't get away; would you torture someone because he's about to torture you?

No, you might kill someone because he's about to kill someone else, and you might torture someone who is about to kill someone else but won't tell you where the victim is, which is the putative excuse for doing it.

Optimus Chyme asked if rape is ever acceptable. Is clearly less severe than torture. So. Is it?
posted by rtha at 4:41 PM on May 14

Rape is less severe than torture? I'd rather be waterboarded than raped. Journalists have voluntarily been waterboarded, none have allowed themselves to be raped. No, rape is never acceptable. What was your point? Mine was that the state and its citizens currently justify lots of killing, and some of the state and some of its citizens seek to justify torture in the service of the same state interests that justify a lot of the killing.

I'd rather the argument be something along the lines of: Historically states and armies did use rape as a tactic to get the conquered to submit, hence the phrase rape and pillage. But we progressed and evolved beyond our past and now see the error and brutality in our past. In the same way, we have to move beyond the brutality of torture which may once have had a place in European or American culture, but no longer does. So let's abandon it and its excuses, and seek to eliminate the proclivity and necessity for violence in the state's administration of law and justice.

As an aside, that Cheney waterboarding story is very disturbing. I'd like to see an investigation of 9/11 and the iraq war, basically a redo of the Commissions work in light of all the new facts. Forget prosecution for the time being. What was the context of that conversation? Was it that the guy (whoever he was) wouldn't confess to an Iraq 9-11 link, so Cheney knew that if he was waterboarded he'd confess to something Cheney already had independent corroborating evidence for (or thought he did) or was it simply that Cheney figured if they waterboarded him, he'd confess to anything they wanted him to, thereby creating 'facts' that would then build the case?

This is amazing to me, because it was al so unnecessary, even from his perspective. If he really wanted to go to war in Iraq, all he had to do was say "We can't allow a rogue state in the middle of that region, it's too destabilizing and he can wait out the status quo better than we can maintain it, so we have to overthrow and replace him." Given the climate in 2003, that argument not only would have been sufficient to get the American public on his side, it would have gone further to convincing other governments in Europe to participate in the military action (or at least the reconstruction).

The more the facts come out, the more bizarre the motives. Like I said above, I wonder if the plan all along was a US military presence to the exclusion of all other world powers. If that was the plan, you'd need to put on a case that NOBODY would accept, paving the way to the US government to go it alone. I realize this constitutes attributing malice to a set of facts just as easily explain by incompetence. But on the other hand, it's Cheney, who is exceedingly competent and malicious.
posted by Pastabagel at 2:06 PM on May 14, 2009

The Cheney story is starting to get legs.
posted by saulgoodman at 2:08 PM on May 14, 2009

The supreme court has already ruled that the U.S. has jurisdiction over Guantanamo. Obama's response was to move prisoners to Bagram.

The waterboarding occured in Poland, on Polish soil, in a military facility controlled and owned by Poland.

You can avoid facts and try to wish the law away. I see it all of the time in my clients. You can call it whatever you want. But the huge problems are real and nobody wants to acknowledge them.

As for investigations, they are already happening. What did you think the hearing yesterday was? It was an investigation, pure and simple.
posted by Ironmouth at 2:09 PM on May 14, 2009

"...and that is why we need a truth commission to look into the issue."

"I have said it before and I will say it again: Impeachment is off the table."

One wonders is the Honorable Ms. Pelosi is simply fighting to stay out of court, by trying to distract the public from learning the extent of her foreknowledge of criminal activity.
posted by Blazecock Pileon at 2:12 PM on May 14, 2009 [1 favorite]

The waterboarding occured in Poland, on Polish soil, in a military facility controlled and owned by Poland.

If it involved US Citizens, Officers, Agents or Contractors they're still personally liable for their choice to violate US Law.

Just ask Aafia Sidduqi. She was in Afghanistan, in an Afghanistan prison, but she ended up in federal court in Brooklyn somehow....
posted by mikelieman at 2:15 PM on May 14, 2009 [1 favorite]

No, you might kill someone because he's about to kill someone else, and you might torture someone who is about to kill someone else but won't tell you where the victim is, which is the putative excuse for doing it.

You simply do not understand the law of self-defense or defense of another. The person you kill must actually be engaged in the act of killing another when you kill him.

You cannot torture someone who is about to kill another. This isn't fucking Darth Sideous who has magical fucking powers. These dudes are tied up and in prison. They are not "about to kill" anyone. Not to mention the incredible logical fallacy at the root of your idea--that somehow we would actually know of enough details of a plot to know with certainty that it would occur and that the person in front of us knew all of the details. If we knew that, we'd already know what was going to happen and would have no need at all to torture.

Stop watching "24." It isn't real.
posted by Ironmouth at 2:16 PM on May 14, 2009 [5 favorites]

Do you really think that prosecuting a local sheriff in the US is the same as prosecuting actions ordered by the President of the United States against non-citizens, purusant to his authority to conduct national defense, taking place in Poland?

Well, yes.

See, the "President of the United States" isn't "Above the Law".

"Non-citizens" are still covered under the 14th Amendment, subsequently, the authority to extrajudicially torture prisoners is denied under the 14th Amendment guarantees of Due Process and Equal Protection.

All the DOJ and FBI have to do is grab a few of the Contractors, and offer them a plea bargain if they rat on their bosses.

Lather, Rinse, Repeat. *EVENTUALLY* you'll hit an "Ali" North or Liddy wannabe, and it'll dead end. But you'll have a nice assortment of alleged felons to prosecute for their choice to violate US Law.

And now, we hear that Pelosi is saying that she was lied to, depriving her of her lawful oversight role -- that's a potential violation of 18 USC 371, too.

Then sent Martha Stewart to prision, why not Dick Cheney?

Prosecution isn't just a question of whether or not you have information, its a question of whether or not it is worth the limited resources you have to pursue it.

Please stop throwing code sections around. You do not do enough research to understand. First, look at the definitions section at the beginning of the code chapter and subchapter. That will be your first step to understand.

There's a guy who continually throws around 18 U.S.C. s 1001 as if it applies to any statement made by any person at any time. He's wrong too. It applies only to cases. Same thing here. You do not understand the law and reading a single code section doesn't help.
posted by Ironmouth at 2:20 PM on May 14, 2009

So pardon me if I don't shout, scream, snark, or call people names--the issue is just too serious for that.

Okay. Then enough derails, dodging, and finger wagging. So's hows about you just provide us with the evidence to support your claims? Particularly this claim, IE that was ample evidence that Bush didn't concoct PR, stovepipe intelligence, and outright fucking lie about WMD and Iraq's ties to 9/11 :

"But in order to believe it you have to posit a very strange view of the Bush admin and ignore a lot of evidence to the contrary."

Where is this evidence? Was it secretly shipped to Syria with all the yellow cake? You've been asked about four or five times and?
posted by tkchrist at 2:21 PM on May 14, 2009 [1 favorite]

I guess now we know that Tenet was referring to waterboarding when he said the evidence of Hussein's WMD was a slam-dunk.
posted by dances_with_sneetches at 2:22 PM on May 14, 2009 [1 favorite]

The difference here is the prosecutions were related to Japanese military personnel torturing American POWs and innocent civilians.

Oh. I see. So we have to find Japanese guys who tortured people.

Oh. Fer fuck sake Pastabagel. You're stretching Realpolitik to incredulous proportions here.
posted by tkchrist at 2:23 PM on May 14, 2009 [1 favorite]

I read through this thread and I see why the world is such a fucked-up place.
posted by five fresh fish at 2:23 PM on May 14, 2009 [1 favorite]

One wonders is the Honorable Ms. Pelosi is simply fighting to stay out of court, by trying to distract the public from learning the extent of her foreknowledge of criminal activity.

Another possibility is the CIA is lying, but what could motivate the CIA to lie about the activities it engaged in? Hmmm.
posted by ryoshu at 2:29 PM on May 14, 2009

How much worse than a taser is waterboarding?

Oh. Jeeze. Pastabgel This is really just too much. One does not use waterboarding to apprehend a criminal in the commission of a crime. how many cops yell "STOP or I'll tie you down and simulate drowning on you!" to bank robbers.

In fact the use of tasers as a means of subduing prisoners already under custody is banned in many places and is under serious scrutiny in others. Particulay becuase that type of misuse does fall under "cruel and unusual."

I tell you one thing. You sure as shit are torturing the hell out of logic in this thread. And the only reason I can see for it is some perverse compulsion to play a rather poor devils advocate.
posted by tkchrist at 2:34 PM on May 14, 2009 [2 favorites]

ryoshu: "Another possibility is the CIA is lying, but what could motivate the CIA to lie about the activities it engaged in? Hmmm."

Sure. But unless the CIA has perfected that mind-ray the psychotics are always warning us about, Pelosi's ever-shifting tale about what she knew and when is all on her.
posted by Joe Beese at 2:38 PM on May 14, 2009

I find all this confusing but I think Roosevelt had it right in his "fear itself" speech--you've got to put it in historical context. After Pearl Harbor, the Roosevelt admin was desperate to make sure another attack wasn't in the offing and to prevent any such attack if it were. If you're cynical, you can say it was because they were thinking about the 1941 election; if not, you say they just overestimated Axis powers’ strength. In either case, they were desperate. And it's not as if Hitler et al. had stopped making direct threats. So Roosevelt and the OSS did what they did to the guys they had on hand to find out what they could….

…Oh, wait, they didn’t institute a policy of torturing people in WWI. Hnh.

“But I do know this: "torture" is what you call interrogation techniques you don't like. Since there is no widely-accepted definition of "torture" (at least in this context), then we can't really say whether "it" is effective or not because we don't know what "it" is.”

We’ve known what torture is for thousands of years. But let me flip it over – any interrogation technique that is coercive rather than elicitive is not effective. We do know what is ineffective. Therefore none of those techniques need to be used whether they’re torture or not. Furthermore – if an interrogation technique that you don’t like, you call torture – why then is there any difference between when we use waterboarding on a prisoner and when someone else uses waterboarding on one of our guys?
Either the technique is objectionable when anyone does it, or it is not.

“Clearly there is confusion on the issue of what "torture" is or there wouldn't be so much debate about it.”

There’s debate about it because it’s politically expedient for certain interests. There’s a lot of debate about ethnic purity as well. And cultural heritage. And I’m happy to ignore the stupid rhetoric until they start acting on it.

“But maybe the Bushies were just scared and trying to do their jobs.”

Fear is not proper or legitimate basis for foreign policy decision making. Nor is it an excuse for failure.

“Is water-boarding torture? Not everyone agrees, and that matters because there is no statute that states "water-boarding is torture."

Not everyone agrees people who have different colored skin should be treated as human beings. If you’ve been waterboarded, you believe you are going to die by drowning. Under statutes, it’s torture. End of story.

There’s no law that says you can’t murder someone with a stag antler by plunging it into their carotid artery, in a phone booth, under a railroad overpass while wearing a clown suit. But we pretty much figure “murder” covers it without going into detail as to the specific technique.

“And finally, I'll point out that the Obama administration is very aware of Cheney's little loophole, but they've done nothing to close it.”

Ah, yes. The “but they’re doing it too!” defense. Perhaps someone will tell mom.

“There is quite a bit of name-calling and distortion of what people have written in this thread.”

People have different definitions of what constitutes name-calling and distortion.
Since there is no widely-accepted definition of "snark" (at least in this context), then we can't really say whether "it" is occuring or not because we don't know what "it" is.”

“It seems illogical that killing can be acceptable but something less severe than killing can never acceptable.”

*sigh * It is in vain, sir, to extenuate the matter. We acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot! Sir, we are weak if we make a proper use of those means which the God of nature hath placed in our power. What is it that gentlemen wish? What would they have? Is freedom so dear, or liberty so sweet, as to be purchased at the price of life and trouble? Forbid it, Almighty God! I know not what course others may take; but as for me, do not give me liberty, give me submission!

It may be illogical that I would kill anyone I saw torturing another human being, but y’know, it’s what would happen.

Fuck Pastabagel, how can you even make a statement like that in earnest? If killing is acceptable than anything “less severe” is logically acceptable? Jesus fucking Christ.

If you hit an animal with your car and it’s beyond saving – you just let it lay there?
So, logically, I could go into the woods, cripple a deer and fuck it, abuse it for sadistic pleasure, but that’s better than a clean shot that kills it instantly?
The people that choose euthanasia instead of enjoying horrific crippling pain for months or perhaps years are morally wrong? It was ok for the government to get involved in the Schiavo thing?
There are plenty of things I would die and kill for. And there are plenty of things I would die or kill before doing.
I would never torture another human being under any circumstances.

Not because it’s “more severe” than killing. Hell, taking a life is the most decisive thing one can do to another human being – but it’s not the most severe. Plenty of things are worse - enslaving them for example. And there are methods of killing I’d never engage in. Under no circumstances would I starve another human to death for example.

But all these details have their root in the moral exercise of power. Killing is done, and condoned, under certain circumstances because we recognize that either a higher value is at stake (liberty, one’s own life if one is not the aggressor, etc) and/or that it is the only thing within our power to do. That is – it’s a recognition of absolute necessity.

There are no circumstances under which torture could ever be an absolute necessity – by it’s very nature – you have to have the other human being wholly within your power.
Issues on bestiality aside – the reason I shoot a deer with a rifle is because it is the most effective means for many things – eating them, controlling their population so they don’t all starve and die horribly, etc.
That I need to do violence in order to accomplish this does not mean that if, say, I capture a deer and it is in my power I have license to harm it. Similarly – once I am powerful enough to capture an enemy, that I could have killed them is not the issue. The issue is that I no longer NEED to kill them because they are within my power. I have options other than killing them (usually – e.g. the Boer war, aside) and so the force I can legitimately bring to bear on them is sharply curtailed.

I could not summarily execute a prisoner. And the law recognizes this. And it’s a matter of practical application as well.
In fact it is so glaringly obvious, and has been such a longstanding act of tradition that I find myself hard pressed to outline it. Like trying to explain why incest or cannibalism is wrong for legal, ethical, and practical reasons.

Many things “less severe” than killing are unacceptable and have been in very, very longstanding practice in the entire civilized world. This is not to say they have not happened. But certainly they have been a result of an evasion of – not a celebration of – society.

Certainly there are pacifists that make the absolutist argument – but mine is predicated on the fundamentals of justice and pragmatism.
Would you kill someone to prevent them from killing an innocent child? Yes.
Would you torture someone to prevent them from torturing an innocent child? It’s a ridiculous question because there’s no practical equivalence. In the case of killing there are well known and documented cases of – hell just recently here in Chicago – hostage takers being killed to prevent harm to innocents.

But as a practical matter – the most efficient method (given talking fails – I’m speaking of tactics here) of preventing harm to an innocent – that is – of using power upon a dangerous individual who intends such harm - is to use the most advanced means available – currently that is skill with a precision rifle and high powered optics.

Torturing someone, is not an efficient means. Nor does it place someone in your power. To torture, someone already has to be in your power. Ergo – they are not capable of harming anyone. Torture cannot occur under the same circumstances where killing can and be legitimately excused. It’s that simple.
(Although I belabored the point, sorry. Seems necessary though)
posted by Smedleyman at 2:40 PM on May 14, 2009 [10 favorites]

It's interesting that the same people who've decried "moral relativity" over the years are now so wishy-washy on whether waterboarding and other forms of torture are morally repugnant when our side does it.

Isn't that always the case, though.

The same people who decry 9/11 as the worst crime in human history and use it as a moral hammer are the same people who don't give a shit about bombing the fuck out of innocent women and children in Iraq.
posted by tkchrist at 2:40 PM on May 14, 2009 [4 favorites]

One wonders is the Honorable Ms. Pelosi is simply fighting to stay out of court, by trying to distract the public from learning the extent of her foreknowledge of criminal activity.

That is just plain stupid. Even if she knew the entire plan top to bottom, she faces exactly zero criminal liability. Please, please please stop making points with no basis in fact. It just muddies up the thread.
posted by Ironmouth at 2:51 PM on May 14, 2009

Okay. Then enough derails, dodging, and finger wagging.

More name-calling. Surely we can do better. And I did respond, up thread. I'm sure the fact that you missed that post was an honest mistake.

I'm not defending what was done, I'm simply pointing out that there are a number of interpretations of the evidence--which is incomplete--that don't fit the really quite strange thesis that the Bushies were dead set to go to war with Iraq before 9/11 (or even immediately after 9/11) and mounted a Watergate-like conspiracy to get their wish. Actually, I think you give them too much credit. The piece of evidence that I cited was that they solicited lots of different opinions from lots of different agencies about Iraq. They then discussed, quite openly, the findings of those agencies. If I recall--and I do--there was quite a debate about what to do with Iraq, and--to my mind at least--the parties in the debate were for the most part genuinely interested in finding the right thing to do based on the evidence at hand. All of them. No. Most of them. Yes. It's very pleasant to see everyone in black and white hats, to say this is "always wrong" and that is "always right," but reality is "always trickier."
posted by MarshallPoe at 2:59 PM on May 14, 2009

I happen to think that shocking someone with a taser or threatening to shoot someone with a taser in order to induce compliance (as opposed to using it as a substitute for deadly force) is torture, as well.
posted by empath at 2:59 PM on May 14, 2009 [1 favorite]

One wonders is the Honorable Ms. Pelosi is simply fighting to stay out of court, by trying to distract the public from learning the extent of her foreknowledge of criminal activity.

Well, surely, that approach--accusing our few potential political allies in congress of betrayal right from the start--could only lead to more pressure for the legislature to take positive steps on the issue! Let's just call it quits now and go eat some bananas and pick lice from each others fur, like good little surrender monkeys.

At bottom, politics is just the art of manipulating people in ways that serve your interests. That dynamic goes both ways. The electorate can effectively manipulate elected officials, too, whether those officials' hearts are in the right place or not, by being just as ruthless and clear-eyed in their machinations as those officials are--but you can't do that by signaling that, on principle, you're not even willing to play ball when an opportunity arises to further each others mutual interests.

As it stands, even if it were true that Pelosi was briefed as fully as the CIA claims (which I actually doubt, if only because all intelligence services lie as naturally as most of us breathe, and it wouldn't be the first time the CIA lied to congress on behalf of the executive branch), the fact is she obviously recognizes there are compelling political reasons to deny these CIA accounts (or else, she wouldn't publicly be calling them liars in the press--no small step--even as we speak).

That gives us, the public, leverage. Even if we don't believe her denials, if we play along and take Pelosi at face value, then obviously, she's in the position of having to take further steps, because you can't just accuse the CIA of lying to congress and then not initiate further investigations or take additional steps.

Suppose instead, we all just decided not to take Pelosi as credible on the issue. How does that further the broader aim of forcing congress to take strong action on the torture question? It doesn't. It undermines those efforts, in fact, whether Pelosi is being honest or not (though again, in this case, I think she is).

Take some cues from how politicians get things done. Do you think it bothers a local politician in the slightest that his constituency are a bunch of hypocrites, who, even as they perfunctorily attend church services every Sunday and go around saying the requisite number of hallelujahs and god bless yous, still carry on lying, cheating, and in general breaking as many of the 10 commandments as they can behind closed doors? No, what matters to that politician is just that when he's standing in front of the TV camera, he knows that if he says "We need to bring God back into our government," his poll numbers get a nice little bump.

Who cares if Pelosi or whoever has always taken the high ground or made the choices we thought were right. The only way to get what we want from her or any other politician is ruthless pragmatism. We have to pressure politicians to do what's right by shrewdly appealing to their self-interests.

Dismissing Pelosi's current moves in the right direction out of hand because her previous actions don't pass some kind of ideological purity test--or even because they strike some of us as cynical and wrongheaded--doesn't advance our interests if we're sincerely hoping to accomplish anything more than just plumbing the depths of our own cynicism and hopelessness in our incessant tongue-wagging over the torture issue.

Going along with this latest twist in the narrative does help us, however. Because if the CIA lied to congress, as Pelosi asserts, that's a big deal, and it means we haven't yet even begun to see where the current round of investigations and political chatter will ultimately lead.
posted by saulgoodman at 3:00 PM on May 14, 2009 [3 favorites]

Even if she knew the entire plan top to bottom, she faces exactly zero criminal liability.

I don't think I claimed otherwise, but she has already contradicted herself publicly about what she knew. Even if she is only brought into a hearing as a witness to give an account that contradicts what she has said in the past, her testimony would presumably establish that she knew torture was being committed by the United States, which would be politically embarrassing. It's unclear if it would get to the point where she would be open to impeachment hearings, but I didn't say anything about that.

Please, please please stop making points with no basis in fact.

Is it not fact that she has been trying (unsuccessfully) to extract herself from any involvement with this issue? What have I said about her that is not factual?
posted by Blazecock Pileon at 3:04 PM on May 14, 2009

It's very pleasant to see everyone in black and white hats, to say this is "always wrong" and that is "always right," but reality is "always trickier."
Tell it to Mr. and Mrs. Peterson.
posted by Smedleyman at 3:07 PM on May 14, 2009

Is it not fact that she has been trying (unsuccessfully) to extract herself from any involvement with this issue? What have I said about her that is not factual?

You stated that she was attempting to keep herself out of court. That is not factual, sir. She faces no criminal liability regardless of her knowledge of the Bush administration's torture policy.
posted by Ironmouth at 3:07 PM on May 14, 2009

Even if she is only brought into a hearing as a witness to give an account that contradicts what she has said in the past, her testimony would presumably establish that she knew torture was being committed by the United States,

Please read the "Speech and Debate" clause of the Constitution.

Seriously, what possible action, by what possible parties with legal standing, would get Nancy Pelosi into court to testify as to a classified briefing by the CIA?
posted by Ironmouth at 3:10 PM on May 14, 2009

The more I read this thread and the more that knot twists in my belly from reading this thread, the less I mind the idea of torture. On myself I mean, torture would be less painfull than reading this.

I also think torture is wrong but I'd be willing to give at least half of the people in this thread the dread Thumbscrew for their silly hand-waving like it makes a good god damn difference to the outcome.

Torture is wrong, so stop it already. You can start with this thread.
posted by nola at 3:10 PM on May 14, 2009

Sure. But unless the CIA has perfected that mind-ray the psychotics are always warning us about, Pelosi's ever-shifting tale about what she knew and when is all on her.

I haven't really followed Pelosi's ever-shifting tale, but the CIA has already been called out on just making shit up about briefing congress:

When I asked the CIA what dates was I briefed, they gave me four dates, two in April, two in September of ‘02,” Graham said. “On three of the four occasions, when I consulted my schedule and my notes, it was clear that no briefing took place on that date, and the CIA eventually concurred in that. So their record keeping is a little bit suspect.

Sen. Graham has a quirk were he writes down everything he does during the day in color coded notebooks.
posted by ryoshu at 3:11 PM on May 14, 2009 [5 favorites]

"Non-citizens" are still covered under the 14th Amendment, subsequently, the authority to extrajudicially torture prisoners is denied under the 14th Amendment guarantees of Due Process and Equal Protection.

Your problem there is that the 14th Amendment applies only to actions by the fifty states. It does not apply to the Federal Government or the District of Columbia.
posted by Ironmouth at 3:12 PM on May 14, 2009 [1 favorite]

You stated that she was attempting to keep herself out of court. That is not factual, sir

I reprinted a quote of her expressing the desire not to pursue impeachment hearings against George W. Bush. Which is recorded fact. Given her latest prevarications about her knowledge about waterboarding, which is also recorded fact, would seem to indicate that she knew more than she has let on. Based on those two facts, I presumed that she, as a career politician, made those statements on the basis that she would like to stay outside of a courtroom and avoid all the public scrutiny that this entails.

She faces no criminal liability regardless of her knowledge of the Bush administration's torture policy.

I did not say this. Please do not put your words in my mouth.
posted by Blazecock Pileon at 3:14 PM on May 14, 2009

More name-calling. Surely we can do better. And I did respond, up thread. I'm sure the fact that you missed that post was an honest mistake.

So now saying "derail dodging and finger wagging" is name calling?

And no. You supplied no such evidence what so ever. You just repeated said that their was such evidence. But declined to actually provide it. (here is the sum total of your refutation:"
Well, no. Again, that's a popular thing for opponents of the Bush admin to say, but it's hyperbolic and quite possibly wrong. ") Give us a cite. Several in fact would be helpful.

While we have given you innumerable items to contradict your claim. Some with actual cites. And there is more to be had all over Metafilter with more cites and facts if you choose to look through the literally hundreds of threads on the subject.

So. Put up, retract, or shut up.
posted by tkchrist at 3:15 PM on May 14, 2009

While to me the idea of using waterboarding to get critical information is by itself acceptable, that would only be true if waterboarding actually gave credible information.

If I knew that by waterboarding I could diffuse a ticking time bomb situation like many others I would find it hard to not do even though I knew it was wrong. The same way I view killing even in self defense as wrong but something necessary.

However the truth of the matter is that waterboarding and torture in general is not effective against combatants who have a cause and I can't understand why we would implement it. The CIA must have known that waterboarding is ineffective compared to normal styles of interorgation so why was there a push to do it?

I don't believe that the professionals in the CIA chose to use waterboarding and other forms of enhanced interorgation by themselves. Their use was passed down to them by the executive branch. Probably because Bush sat on his ass when he had credible information that something big might happen from the CIA and he did nothing, but then I wouldn't know the details of what exactly happened.

Hopefully now we can realize that torture no matter what is ineffective and moving on will choose voluntarily to not implement it because there are superior methods available.
posted by Allan Gordon at 3:16 PM on May 14, 2009

Optimus Chyme asked if rape is ever acceptable. Is clearly less severe than torture. So. Is it?
posted by rtha at 4:41 PM on May 14

Rape is less severe than torture?
posted by Pastabagel at 2:06 PM on May 14 [+] [!] Other [8/8]: «≡·

Whoa. That qualifies as my worst mistyped sentence in the history of metafilter.

I was riffing on your idea that torture is less severe than killing, but killing is permissible, even necessary, under certain circumstances.

I should have typed "It (rape) is clearly less severe than killing." (Therefore, are there ever circumstances under which it is not only permissible but necessary?)

My apologies for any confusion.
posted by rtha at 3:21 PM on May 14, 2009

The CIA must have known that waterboarding is ineffective compared to normal styles of interorgation so why was there a push to do it?

Ali Soufan testified the other day that the CIA interrogators objected to the use of torture, but were overruled by a CIA contractor.
posted by ryoshu at 3:27 PM on May 14, 2009 [1 favorite]

I reprinted a quote of her expressing the desire not to pursue impeachment hearings against George W. Bush. Which is recorded fact. Given her latest prevarications about her knowledge about waterboarding, which is also recorded fact, would seem to indicate that she knew more than she has let on. Based on those two facts, I presumed that she, as a career politician, made those statements on the basis that she would like to stay outside of a courtroom and avoid all the public scrutiny that this entails.

She can't be called into court to give such testimony. Its called the speech and debate clause of the US Constitution. She may or may not be truthful, (I think she is being truthful), but certainly there is no motivation to lie based on a fear of having to "testify in court." Even if the Speech and Debate clause didn't exist, she's not in the command loop. Her testimony would not "prove" anything in any possible case.

Think of it this way, how would what a briefer told her be relevant to a civil or criminal proceeding? If it is a criminal case against an interrogator or political, her testimony as to what was said to her would not prove or disprove any element of the case against the defendant. If it was a civil case, what was said to her would not prove that those things were done by anyone. Its a little evidentiary rule we like to call "hearsay."

Therefore there is no motivation of the type you describe. Perhaps she has a political motiviation to not tell the truth, but there is no motivation to lie to avoid testimony of any kind.

Having said that, all of the focus on Pelosi is a red herring by Republicans. Why are you so interested in getting off the track of finding out the truth of what they did"? As Josh Marshall said the other day: Let's not get distracted by what happened and lose sight of who was briefed about it.
posted by Ironmouth at 3:29 PM on May 14, 2009

It's simple. Waterboarding does not garner useful information. It is not interrogation. Waterboarding is torture. We have defined it as such for over 50 years. Torture is not for getting information. It's for obtaining confessions. Trumped up confessions. And torture is a means of dehumanizing and demoralizing a human being. The only other function torture serves is for the pleasure of the sadist. That's it.

There is simply no reasonable justification for torture. Morally OR legally. None. This little rhetorical dance people are doing to define if waterbaording is torture or not - or if it was legal or not - is a disgusting red herring.

If you think waterboarding is not torture and is useful for interrogation and such interrogation leads to factual iinformation then it should be legal to do to US citizens. It would save billions of taxpayer dollars and millions of lives. There is simply no compelling logical reason that we should not waterboard every criminal to garner confessions.

What? You don't wanna waterboard a child rapist? You soft on crime? You're more concerned with a child rapists rights than saving helpless babies!?!

And if it's okay to waterboard a child rapist then why not a bank robber or a shop lifter?

Fuck it. Waterboard everybody.
posted by tkchrist at 3:30 PM on May 14, 2009 [4 favorites]

Boehner the Flip-Flopper:

"Today, May 14, 2009, Rep. John Boehner criticized Speaker Pelosi's press conference by saying, 'it's hard for me to imagine that our intelligence area would ever mislead a member of Congress.' Yet in 2007, Rep. Boehner criticized our nation's intelligence community by saying, 'either I don't have confidence in what they told me several months ago or I don't have confidence in what they're telling me today.' Once again, rather than finding the truth, Rep. Boehner is playing politics."

Rep. Boehner -- Now and Then.
posted by ericb at 3:31 PM on May 14, 2009

Your problem there is that the 14th Amendment applies only to actions by the fifty states. It does not apply to the Federal Government or the District of Columbia.

My bad. The 5th Amendment guarantees Due Process.

And the 5th Amendment is totally applicable to the Federal Government.

"... nor shall any person ... be deprived of life, liberty, or property, without due process of law;"
posted by mikelieman at 3:34 PM on May 14, 2009

Yes. It's very pleasant to see everyone in black and white hats, to say this is "always wrong" and that is "always right," but reality is "always trickier."

So let me ask you again, given that:

But I do know this: "torture" is what you call interrogation techniques you don't like. Since there is no widely-accepted definition of "torture" (at least in this context), then we can't really say whether "it" is effective or not because we don't know what "it" is.

and

In Through the Looking Glass, Humpty Dumpty famously tells Alice “When I use a word, it means just what I choose it to mean—neither more nor less.” Well, I'm sorry to say that that is not the way it works, as you well know.

Is it your contention that the section in the Geneva Convention prohibiting torture is meaningless because it can't be defined?
posted by Combustible Edison Lighthouse at 3:36 PM on May 14, 2009

Allan Gordon: "If I knew that by waterboarding I could diffuse a ticking time bomb situation like many others I would find it hard to not do..."

As linked upthread, The Real Life Ticking Bomb Scenario.

You see, "the ticking time bomb" is a fantasy. It has no connection with anything that takes place in the actual world.

In the actual world, people get tortured because Dick Cheney wants to manufacture a justification for the war crime he launched to enrich his old pals at Halliburton. People get tortured because George Tenet gets into a pissing contest with the FBI when their "non-enhanced" interrogation starts to show superior results. [actual examples]
posted by Joe Beese at 3:38 PM on May 14, 2009 [1 favorite]

I'm not defending what was done, I'm simply pointing out that there are a number of interpretations of the evidence--which is incomplete--that don't fit the really quite strange thesis that the Bushies were dead set to go to war with Iraq before 9/11 (or even immediately after 9/11) and mounted a Watergate-like conspiracy to get their wish.

I was going to let this pass without comment, but...here goes.

I don't know if there was a Watergate-like conspiracy, but there was a very powerful group of people that were looking for a way to go to war with Iraq. This group included: Elliott Abrams, Richard L. Armitage, John Bolton, Zalmay Khalilzad, Richard Perle, Donald Rumsfeld, Paul Wolfowitz, I. Lewis Libby, Robert B. Zoellick and Dick Cheney. It's not like this is secret information, they have a website and everything. If you look at some of their writings you can tell they wanted war with Iraq:

In the long term, it means removing Saddam Hussein and his regime from power. That now needs to become the aim of American foreign policy.

So yeah, the Bushies were dead set to go to war with Iraq before 9/11.
posted by ryoshu at 3:39 PM on May 14, 2009 [3 favorites]

By contrast, there is much less debate about what a "chair" is (though I imagine there is some).

Ah, memories of Plato's 'Theory of Forms.'
posted by ericb at 3:41 PM on May 14, 2009

Your problem there is that the 14th Amendment applies only to actions by the fifty states. It does not apply to the Federal Government or the District of Columbia.

My bad. The 5th Amendment guarantees Due Process.

And the 5th Amendment is totally applicable to the Federal Government.

"... nor shall any person ... be deprived of life, liberty, or property, without due process of law;"

Not in Poland.
posted by Ironmouth at 3:44 PM on May 14, 2009

And we must not forget Plato's teacher and mentor: Socrate's Theory of Definition.
posted by ericb at 3:45 PM on May 14, 2009

Not in Poland.

At least you didn't forget it.
posted by ryoshu at 3:47 PM on May 14, 2009 [4 favorites]

I don't think that long-term solitary confinement as it is used in U.S. prisons is okay. I believe it is torture. I believe it should be morally beneath us. It is wrong.

Wired: Solitary Confinement: The Invisible Torture.

Recent FPP (also posted by Joe Beese), regarding the March 2009 New Yorker article: "Hellhole: The United States holds tens of thousands of inmates in long-term solitary confinement. Is this torture?"
posted by ericb at 3:49 PM on May 14, 2009

[S]he's not in the command loop.

I'm not 100% certain what "command loop" means in the sense you are using it, but Ms. Pelosi was a ranking Democrat on the House intelligence committee, which has some oversight over CIA activities.

Even if for a short time, she had some measure of influence. If she knew torture was being committed, she was in a position to do something about it. If the CIA misled her and others about the technique and its legality, then she still contradicted her initial story.

Either way, she is on the record for statements that signal that she desires no part of this debacle as it seems to progress inevitably to congressional investigations and any associated judicial actions. Here's another choice quote where she flails and deflects:

"I am saying that the C.I.A. was misleading the Congress and at the same time the administration was misleading the Congress on weapons of mass destruction."

Initially, she wished impeachment "off the table", and her involvement in this scandal probably goes a long way to explaining why she wants to wipe her hands clean, by distracting the public away from her statements, assigning blame to the CIA and the White House. In particular, her most recent comment about the White House lying about WMDs is particularly and egregiously offensive, given her initial opposition to impeachment.

Republicans are indeed trying to play political games by going after Ms. Pelosi. But that doesn't mitigate her involvement. It doesn't weaken the executive branch's obligation to call the Republican bluff and have the AG launch a full and complete investigation. I don't really feel too sorry for Democrats who marched in lockstep with Republicans during the Bush years. If she has something to hide, we should know it.
posted by Blazecock Pileon at 3:50 PM on May 14, 2009 [1 favorite]

Waterboard Pelosi!
posted by tkchrist at 4:05 PM on May 14, 2009

Stop watching "24." It isn't real.

L.A. Times | February 13, 2007 : '24' Gets a Lesson in Torture from the Experts

“While hardly alone in the entertainment universe of television and movies in portraying torture, shows like ‘24’ and later ABC's ‘Lost’ were sought out by the human rights activists because of their popularity, both here and around the world. Even in Iraq, such series can sometimes substitute for or trump military training, and transmit a dark message to soldiers.

‘Everyone wanted to be a Hollywood interrogator,’ said Tony Lagouranis, a former U.S. Army interrogator at Abu Ghraib prison in Iraq who spoke to the creative teams from ‘24’ and ‘Lost.’ ‘That's all people did in Iraq was watch DVDs of television shows and movies. What we learned in military schools didn't apply anymore.’

At the infamous Iraqi prison for nearly all of 2004, Lagouranis soon left the military and went to the media to detail the torture, largely ineffective, that was inflicted upon the inmates. He said that his actions -- sleep deprivation, hypothermia, dietary manipulations and use of dogs, all illegal according to American and international law -- were relatively mild compared with what else was being practiced.

‘It's an ugly thing,’ said Lagouranis. ‘You don't get neat, tidy answers like you do on television.’

The Hollywood meeting, a spirited back-and-forth discussion with its moments of defensiveness by most accounts, lasted a couple of hours and was followed by an Italian lunch. For the ‘24’ team, the afternoon served as a rare opportunity for it to debrief real-world interrogators, but it also stirred up television's age-old tension between entertainment and social responsibility.

‘The meeting was an eye-opener,’ said ‘24’ executive producer Howard Gordon. ‘We hadn't really thought a lot about torture as anything more than a dramatic device.’

As a result, Gordon has been filmed for a Humans Rights First video about torture that is expected to be used next fall at West Point and perhaps other military organizations as well. Executive producers from ‘Lost’ also agreed to be in the video, which was shot last month.

Human Rights First, a nonprofit group with an annual budget of about $7 million, plans to continue pushing the point. They are in talks with the Writers Guild of America to bring in its team of former interrogators to discuss real-world experiences with Hollywood writers.”

New Yorker | February 19, 2007: Whatever It Takes

“This past November, U.S. Army Brigadier General Patrick Finnegan, the dean of the United States Military Academy at West Point, flew to Southern California to meet with the creative team behind ‘24.’ Finnegan, who was accompanied by three of the most experienced military and F.B.I. interrogators in the country, arrived on the set as the crew was filming. At first, Finnegan—wearing an immaculate Army uniform, his chest covered in ribbons and medals—aroused confusion: he was taken for an actor and was asked by someone what time his ‘call’ was.

In fact, Finnegan and the others had come to voice their concern that the show’s central political premise—that the letter of American law must be sacrificed for the country’s security—was having a toxic effect. In their view, the show promoted unethical and illegal behavior and had adversely affected the training and performance of real American soldiers. ‘I’d like them to stop,’ Finnegan said of the show’s producers. ‘They should do a show where torture backfires.’”

Torture on TV Rising and Copied in the Field.

Previous MeFi FPP: Number 1 for Torture.
posted by ericb at 4:09 PM on May 14, 2009 [3 favorites]

The officially stated policy of the United States in 1998 was to replace the regime in Iraq.

From your link (emphasis added): "The Act declared that it was the Policy of the United States to support 'regime change.'" This meant supporting Iraqi opposition groups, not invading the country and overthrowing the government. The act says, "Nothing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces (except as provided in section 4(a)(2)) in carrying out this Act."
Section 4(a)(2)) says, "The President is authorized to direct the drawdown of defense articles from the stocks of the Department of Defense, defense services of the Department of Defense, and military education and training for such organizations."
posted by kirkaracha at 4:10 PM on May 14, 2009

Stop watching "24." It isn't real.

Also, from the New Yorker 'Whatever It Takes' article:

“Tony Lagouranis, a former Army interrogator in the war in Iraq. He told the show’s staff that DVDs of shows such as ‘24’ circulate widely among soldiers stationed in Iraq. Lagouranis said to me, ‘People watch the shows, and then walk into the interrogation booths and do the same things they’ve just seen.’... ‘In Iraq, I never saw pain produce intelligence,’ Lagouranis told me. ‘I worked with someone who used waterboarding’—an interrogation method involving the repeated near-drowning of a suspect. ‘I used severe hypothermia, dogs, and sleep deprivation. I saw suspects after soldiers had gone into their homes and broken their bones, or made them sit on a Humvee’s hot exhaust pipes until they got third-degree burns. Nothing happened.’ Some people, he said, ‘gave confessions. But they just told us what we already knew. It never opened up a stream of new information.’ If anything, he said, ‘physical pain can strengthen the resolve to clam up.’

Last December, the Intelligence Science Board, an advisory panel to the U.S. intelligence community, released a report declaring that ‘most observers, even those within professional circles, have unfortunately been influenced by the media’s colorful (and artificial) view of interrogation as almost always involving hostility.”

posted by ericb at 4:15 PM on May 14, 2009 [2 favorites]

[S]he's not in the command loop.

I'm not 100% certain what "command loop" means in the sense you are using it, but Ms. Pelosi was a ranking Democrat on the House intelligence committee, which has some oversight over CIA activities.

Even if for a short time, she had some measure of influence. If she knew torture was being committed, she was in a position to do something about it. If the CIA misled her and others about the technique and its legality, then she still contradicted her initial story.

Either way, she is on the record for statements that signal that she desires no part of this debacle as it seems to progress inevitably to congressional investigations and any associated judicial actions. Here's another choice quote where she flails and deflects:

"I am saying that the C.I.A. was misleading the Congress and at the same time the administration was misleading the Congress on weapons of mass destruction."

Initially, she wished impeachment "off the table", and her involvement in this scandal probably goes a long way to explaining why she wants to wipe her hands clean, by distracting the public away from her statements, assigning blame to the CIA and the White House. In particular, her most recent comment about the White House lying about WMDs is particularly and egregiously offensive, given her initial opposition to impeachment.

Republicans are indeed trying to play political games by going after Ms. Pelosi. But that doesn't mitigate her involvement. It doesn't weaken the executive branch's obligation to call the Republican bluff and have the AG launch a full and complete investigation. I don't really feel too sorry for Democrats who marched in lockstep with Republicans during the Bush years. If she has something to hide, we should know it.

Let's get one thing straight. Nancy Pelosi had no authority to stop waterboarding. If she did know about it, then she might have said something. But she is not a person with authority, as house minority leader, to order anything stopped.

Now you claim she knew about it. But other parties to those breifings said they didn't get the waterboarding briefing either. You prefer to believe the CIA and the Republicans, despite their history of lying.

Let me suggest that you are mad at Pelosi for not impeaching Bush in 2007 or 2008 and that is clouding your judgment on who to believe here. But I will put $50 on Nancy telling the truth and the CIA and the Republicans being the liars. Perhaps you feel their track record of telling the truth is much better than Ms. Pelosi's. I do not.

As for not wanting to be part of this debacle, coming out on national tv and saying flat out she was lied to, a statement that can be confirmed or denied, is not the behavior of someone trying to avoid the controversy. It is the statement of someone injecting themselves into it.
posted by Ironmouth at 4:25 PM on May 14, 2009 [2 favorites]

Report: Cheney office ordered waterboarding

I hadn't seen that story, and it does change things considerably.

Well, the story is the focus of the second hyperlink of the FPP.
posted by ericb at 4:27 PM on May 14, 2009

Stop watching "24." It isn't real.

The conservative jurist [SCOTUS Judge Antonin Scalia] stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. “Jack Bauer saved Los Angeles. … He saved hundreds of thousands of lives,” Judge Scalia said. Then, recalling Season 2, where the agent’s rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand.

“Are you going to convict Jack Bauer?” Judge Scalia challenged his fellow judges. “Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so.
posted by Blazecock Pileon at 4:29 PM on May 14, 2009 [1 favorite]

But she is not a person with authority, as house minority leader, to order anything stopped.

Apparently Congressional committees are usually charged with some oversight, including the House intelligence committee she was on as a senior member (even if briefly). If she knew torture was being authorized and conducted, she did nothing within the scope of her power of seniority to fight. It's true that much the same could be said about many of the quislings who colluded with the Republican party.

Let me suggest that you are mad at Pelosi for not impeaching Bush in 2007 or 2008 and that is clouding your judgment on who to believe here. But I will put $50 on Nancy telling the truth and the CIA and the Republicans being the liars. Perhaps you feel their track record of telling the truth is much better than Ms. Pelosi's. I do not.

Nothing is either/or. Based on what is on public record, it seems clear and factual that all three parties have been lying as to the extent of what they know and when they first knew it, with respect to both torture and false WMD claims. I'll put $50 on all of them being dirty. Investigate them all. Get it all out on the table.
posted by Blazecock Pileon at 4:41 PM on May 14, 2009 [1 favorite]

But I am vexed and confused, and I know a lot of my very well-intentioned and very patriotic friends are as well.

The feeling you are trying to describe is "cognitive dissonance". You are feeling it because you are trying to believe two incompatible things at once:

1) Dick Cheney is a good person.

2) Dick Cheney ordered torture, which is not only immoral, but also illegal and ineffective. All of which he knew at the time and knows now.

You are trying to reject #2 in this thread. This is the wrong choice.
posted by DU at 5:08 PM on May 14, 2009 [3 favorites]

Former SERE Instructor: ‘We Created’ An ‘Al Qaeda SERE School’
posted by homunculus at 5:23 PM on May 14, 2009

"I'll put $50 on all of them being dirty. Investigate them all. Get it all out on the table."

I'd go with that. If only because of the political "Fail Safe" theme going on (they know we're serious about not bombing Moscow on purpose because we're willing to bomb New York). Not that I'm looking to sacrifice anyone. But if Pelosi's hands aren't clean (if) - it'd be a big sign that it's not partisan politics but a serious neutral investigation.

But it's pretty clear the GOP is taking the Comedian perspective of morality here (Yeah, pregnant woman, gunned her down. Bang. And YOU watched me). Not that the Dems had the power to stop it or teleport everyone to Mars like Dr. Manhattan, but it would have been nice if there was, y'know, an opposition party (other than the few people who did speak out). And granting they were receiving (metaphoric) sand in the eyes.

I don't know, 'complexity' seems to me a euphemism for lack of gumption or moral fiber. Things can be complex. Which is why you go an inquire. Put light on it. Ask. Reveal. Hash things out. As soon as someone says somethings complex, and also - we can't talk about it - big red flags should go up.
It's not like we're talking about troop movements or undercover operatives in the field (although the Bush administration didn't seem to concerned about revealing the latter).
posted by Smedleyman at 5:30 PM on May 14, 2009 [2 favorites]

Wow hom - worth it for just brothabilldenstein. Crazy. (although he's right about the 4th dimension denizen Elohim named Jarwar. He's slept on my couch too. Guy just can't keep a job what with helping the super evolved humans and bringing about the Kingdom of Shambala. Nice guy, but I think he stole some of my CDs)

I wonder if any jury would convict a superior who shot Bauer?
posted by Smedleyman at 5:38 PM on May 14, 2009

‘The meeting was an eye-opener,’ said ‘24’ executive producer Howard Gordon. ‘We hadn't really thought a lot about torture as anything more than a dramatic device.’

Irresponsible Hollywood idiot. How stupid is he to think his "dramactic devices" don't shape the society in which he lives? If anyone happens to be in his vicinity, smack that fucker up the head for me.
posted by five fresh fish at 6:04 PM on May 14, 2009

"Not in Poland."

There's still all those places flying US Flags where people were tortured to death, you know...

I think *that's* why the Generals are against the Federal Court decision to release the photographs. They document deaths which haven't been reported publicly -- and which will conclusively raise the stakes from "Torture" to "Murder"
posted by mikelieman at 6:05 PM on May 14, 2009

“Are you going to convict Jack Bauer?” Judge Scalia challenged his fellow judges. “Say that criminal law is against him? ‘You have the right to a jury trial?’ Is any jury going to convict Jack Bauer? I don’t think so.

The essential point being that Jack Bauer goes in front of a Judge and Jury and has his ***CHOICE*** do what he did assessed by his peers.

It's called "Justice". If Jack Bauer was *right* and it 'Had To Be Done", then the jury will acquit him. If Jack Bauer was *wrong* -- he goes to PMITA-Prison, and they can renew -Prison Break- or some shit...
posted by mikelieman at 6:08 PM on May 14, 2009

Once again, Chris Floyd...

Meanwhle, the progressive anti-war peace liberal president is also mulling over ways to continue the Bush policy of holding Terror War captives indefinitely without trial or charge. But not to worry: it seems there is a lot of "debate" within the Administration about a draconian practice that even Hitler and Stalin largely shied away from. (Most of their gulag victims were duly sentenced under specific charges for specific -- if often infinitely elastic -- terms.) Doesn't that make you feel better -- the leaders of the American republic "debating" the permanent, extra-legal incarceration of captives at the arbitrary will of the executive?

As Hemingway enjoyed saying: How do you like it now, gentlemen?
posted by Joe Beese at 6:33 PM on May 14, 2009

Investigate them all. Get it all out on the table.

Really pragmatic view you're taking there. Who'll be left to lead the charge for investigations and prosecutions once we start investigating Pelosi, Reid, and all the rest? John Boehner and Lindsey Graham? Yeah, good luck with that. Do you really want someone to be held accountable? I do. And for the record, Pelosi never committed to impeaching Bush, so while you may not agree with her position, it's not fair to question her integrity on the basis of an honest policy disagreement.

And speaking of Grahams...
When I asked the CIA what dates was I briefed, they gave me four dates, two in April, two in September of ‘02,” Graham said. “On three of the four occasions, when I consulted my schedule and my notes, it was clear that no briefing took place on that date, and the CIA eventually concurred in that. So their record keeping is a little bit suspect.
Sen. Graham has a quirk were he writes down everything he does during the day in color coded notebooks.

The significance of this anecdote shouldn't be overlooked.
posted by saulgoodman at 6:39 PM on May 14, 2009

I'll put $50 on all of them being dirty. Investigate them all. Get it all out on the table.

The permanent revolution eh?

I'm surprised the Republican propaganda about Nancy Pelosi. She is an excellent Speaker. She is extremely liberal and has worked hard to move extremely important legislation. She was a key silent ally to Obama from the start, her preference for him signified by her top lieutenant's early endorsement. The Republicans have got you on a string--also she's tough as balls too. Just because she didn't commit the singularly stupid act of impeaching Bush, you want to dump one of our best assets. Her good judgment is evidenced by the fact that she didn't impeach Bush. There was exactly zero chance Bush would have been impeached, let alone convicted. It would have been one more in a series of Dem disasters. Instead, under her leadership, we have all the power in the House. Her order to Dems to vote down the first TARP bill resulted in a tremendous Dem victory and the GOP's reaction sunk them and fatally wounded McCain.

Sometimes I am more amazed at our side than the GOP. We have a powerful, charismatic President, charting the most liberal course since 1964. We have a mandate. In a few weeks our majorities will swell to the point that we are capable of overriding a filibuster from our own caucus.

Our enemies are prostrate, left to defending the undefendable and looking pathetic.

Yet this is still not enough. Somehow, the critics believe its all part of Rove's evil plan. Meanwhile we are to enforce ideological purity on them based on their failure to suicidally violate the law and disclose classified information. What you advocate she do is illegal. She'd likely be immune under the Speech and Debate Clause, but the Dems would have gone down in flames and Bush would have continued to have a GOP majority in Congress.

All wrong. All wrong. Stupid and would have resulted in many more deaths in Iraq. I think that's just dumb.
posted by Ironmouth at 6:40 PM on May 14, 2009 [3 favorites]

I'm with Ironmouth. You're not helping your own professed causes (which I'm starting to doubt are really anything more than easy justifications for climbing up onto various soap boxes to create the illusion of being taller than you are). You're pissing into the wind when you should be pissing with it.
posted by saulgoodman at 6:47 PM on May 14, 2009

Pastabagel, there are some conversations I am willing to have, and I think people can have reasoned differences, and that's all right. The subject of torture is not one. It is a wrong. If there is wrong in the world, torture is among it. I will not engage in discussion about whether it is justified or not, just as I will not engage in discussions of, say, whether genocide is ever justified, or whether racism is ever justified. It never is.

The fact that you are arguing that it might be, in circumstances, justifiable, is not one I will engage, and has forever diminished you in my eyes. It's very disappointing that you would even attempt to engage such a discussion, or anybody would. It has produced nothing of documentable value, it is universally regarded as a social wrong, it is the favorite tactic of demagogues and mass murderers, and it is demolished the United States' moral authority in the world. We are not supposed to be the torturers. We are supposed to be the people who know better.
posted by Astro Zombie at 6:52 PM on May 14, 2009 [8 favorites]

Ironmouth: " We have a powerful, charismatic President, charting the most liberal course since 1964. "

You know who else were pleased with their powerful, charismatic new leader?

OK, cheap shot. But if this is your idea of "the most liberal course since 1964", I can only observe that the Bush years - while obviously hard on all of us - truly fucked you up.
posted by Joe Beese at 7:01 PM on May 14, 2009

I think *that's* why the Generals are against the Federal Court decision to release the photographs. They document deaths which haven't been reported publicly -- and which will conclusively raise the stakes from "Torture" to "Murder"

IMO, it is very likely the photographs document the torture of children in front of their parents.
posted by five fresh fish at 7:04 PM on May 14, 2009 [1 favorite]

five fresh fish: " it is very likely the photographs document the torture of children in front of their parents."

Hersh says some of the stuff out there is really that bad. And he was right about Abu Ghraib, of course. But I'm not sure if any of that is in the batch under discussion. If it is, Obama is going to seem like a sociopath for having described it as not more shocking than the earlier pictures.

I'm hoping that it really is just more of the same. But it sounds likely that there's so much of it that Obama will probably need to drop the hand-me-down "few bad apples" story he's still peddling.
posted by Joe Beese at 7:14 PM on May 14, 2009

Not in Poland.

The Fifth Amendment applies on U.S. soil and to the U.S. government, wherever it is. If the U.S. government is doing it, it could be on Mars and the Fifth Amendment would apply.
posted by oaf at 7:26 PM on May 14, 2009 [1 favorite]

now tell me where you put that explosive space modulator
posted by oaf at 7:28 PM on May 14, 2009 [1 favorite]

OK, cheap shot. But if this is your idea of "the most liberal course since 1964", I can only observe that the Bush years - while obviously hard on all of us - truly fucked you up.

The man has been in office less than three months. He hasn't figured out what to do with the detainees.

What would you do with Khalid Sheik Mohammed? Release him? He's a mass murderer.

Finally, I'd like to complain about two big distortions you made. If you read the links, there is no evidence that the 9/11 Commission ordered torture. We may find out the questions they asked did result in torture, but there is no evidence of it.

Second, you engaged in another distortion when you mischaracterized a link by stating that Cheney ordered waterboarding. The.link said no such thing. The story indicated Cheney suggested that an Iraqi official be waterboarded to get info on the fabled Iraq-al Qaeda link. The person in charge of the captives wisely refused.

I say this because it is absolutely critical that we be accurate as hell. This is a battle being waged on thousands of message boards and in front of thosands of water coolers. If we get the story wrong, we lose credibility. Just like their lies bit them in the ass. When the evidence does show Cheney did this, scream it to the hills. But until we know for sure, don't say it.
posted by Ironmouth at 7:47 PM on May 14, 2009 [3 favorites]

But it sounds likely that there's so much of it that Obama will probably need to drop the hand-me-down "few bad apples" story he's still peddling.

I don't think this a fair characterization at all of what Obama's position has been. He hasn't taken the received "few bad apples" line at all. In fact, he's taken the opposite view: that those carrying out specific acts of torture were following the legal guidance offered under the previous administration.

Last month, the WaPo offered a slightly more nuanced treatment of Obama's position on the previous administration's torture policies. It's pretty clear from his statements that, while he may not be enthusiastic about the prospect of what could be portrayed as a partisan prosecution, he hasn't ruled out future action against those who formulated the policies. The very fact that he's acknowledging that those who carried out torture were acting in accordance with explicit policies established under the previous administration, under the legal advice of their attorneys, disproves the assertion that he's still peddling the "few bad apples" line.

"While Obama defended his opposition to holding CIA interrogators legally accountable, he did not extend that posture to those who created a legal foundation for the policy."
posted by saulgoodman at 7:48 PM on May 14, 2009

Not in Poland.The Fifth Amendment applies on U.S. soil and to the U.S. government, wherever it is. If the U.S. government is doing it, it could be on Mars and the Fifth Amendment would apply.

So an MP slaps a Korean at a checkpoint in Seoul and he has a right of action in US courts? What, under Bivens? the Fifth Amendment gives no such right.

Let me explain. It was done in Poland. On a Polish military reservation. The US did not own or control the base. Why? Precisely because the fifth amendment doesn't apply to foriegn nationals living in their own countries.
posted by Ironmouth at 8:18 PM on May 14, 2009

Hoekstra Says Waterboarding Was Legal, Claims ‘There Is A Wide Range Of Waterboarding.’

“In a tense interview on Fox News today, host Shep Smith repeatedly pressed Rep. Pete Hoekstra (R-MI) if waterboarding is torture. Hoekstra initially dodged, saying, ‘I don’t know if it’s torture or not.’ ‘I’d like an answer, sir,’ Smith responded. Asked a fourth time, Hoekstra finally said he believes that interrogations used in the ‘immediate aftermath’ of 2002 — which included waterboarding — were ‘consistent’ with the law:
SMITH: And waterboarding is or is not torture?

HOEKSTRA: There is a wide range of waterboarding. I’m telling you, that I know waterboarding was used, Shep. I’m not mincing words. I’m saying that I believe the techniques used in 2002, in 2003, which included waterboarding in a specific format that I’m aware of how they used it, that I believe that was consistent with U.S. law.
Watch it: video | 02:41.

Of course, waterboarding has for decades violated domestic and international law.”

posted by ericb at 8:38 PM on May 14, 2009

Assuming that both parties agree on "what was done," then I can only conclude that there is some disagreement about what the word "torture" means.
posted by MarshallPoe at 2:01 PM on May 14

There's only one way to know for sure. You can volunteer to be waterboarded, with a physician present to make sure you don't die - more than our detainees get, to be certain.

I really mean it. You say you'll do it, we'll come to you and try it out, at our expense, and then you can say, for sure, whether or not it's torture. And once you've gone through it, I'll accept what you decide to call it afterwards.

So do it. Man up or shut up, Marshall.
posted by Optimus Chyme at 8:50 PM on May 14, 2009 [1 favorite]

Her good judgment is evidenced by the fact that she didn't impeach Bush.

At what point do you ever choose to draw the line and say wrong is wrong? The Honorable Ms. Pelosi seems to finally realize she's on the wrong side of that line and is desperate to claw her way back to the other side before anyone notices.
posted by Blazecock Pileon at 9:22 PM on May 14, 2009 [1 favorite]

At what point do you ever choose to draw the line and say wrong is wrong? The Honorable Ms. Pelosi seems to finally realize she's on the wrong side of that line and is desperate to claw her way back to the other side before anyone notices.

desperate? please. at a time when it was not popular she voted against the war. Impeaching Bush would have put the GOP in power for even longer. Although her choices might not have been the ones you made, she saved lives by not destroying our chances. Who the hell is going to run the House? Steny fucking Hoyer? Because he's next.
posted by Ironmouth at 9:36 PM on May 14, 2009

What I don't understand about this whole "prosecuting them will be hard" idea is: what about RICO? Aren't they, almost by definition, acting as a part of a criminal conspiracy, with the direct aim being criminal acts?

I honestly don't see why that net wouldn't catch this fish, they certainly use it on smaller fry.
posted by paisley henosis at 11:38 PM on May 14, 2009

You can volunteer to be waterboarded [..] Man up or shut up, Marshall.

This is unfair. I wouldn't volunteer to be jailed for a day to win an internet argument, but jail isn't torture.

[For the avoidance of doubt, I'd like to affirm that (1) torture is evil and wrong in all circumstances, (2) waterboarding is torture, (3) Optimus Chyme's argument is flawed, (4) so is MarshallPoe's sense of ethics and morality.]
posted by ryanrs at 12:53 AM on May 15, 2009

Wow, this feels like it came out long ago, but it was just August '08...
Christopher Hitchens: Believe Me, It's Torture. Presumably this should provide enough first-hand horror to free Mr. Marshall of any need to actually undergo the procedure.
posted by kaibutsu at 1:05 AM on May 15, 2009

Let me explain. It was done in Poland. On a Polish military reservation. The US did not own or control the base. Why? Precisely because the fifth amendment doesn't apply to foriegn nationals living in their own countries.

Were U.S. persons, employed by the U.S. government and acting purely in that capacity, doing the interrogation? Yes? Then that restriction on the government restricts the government. It's in no way comparable to an MP slapping some guy in an airport, which probably isn't a government action.

The U.S. government must exist within the Constitution; it does not exist without it.
posted by oaf at 1:10 AM on May 15, 2009

kaibutsu:
There's also testimony coming out saying that waterboarding was used heavily to create a link between Iraq and Al-Qaida. Any 'information' obtained would have been (and probably was) used to justify the Iraq war and thus wasn't going to be subjected to the rigors of a court proceeding.

and

tkchrist:
So. Clearly they waterboarded this guy 183 times becuase he didn't know anything useful. Instead the process was more akin to the Inquisition they wanted him to "confess" to the pre-determined needed set of crimes but somehow he just wasn't cooperating. And I bet a good deal of that intelligence they wanted him to "confess" was about Iraq's supposed connection to 9/11.

That is it right there. No information of any value could come from these interrogations, whatever the methods applied. None was expected or desired. If the detainee was captured on the field of battle, fine. If he was a shepherd or a cab driver who was turned in by someone with a grudge and/or looking to collect a finder's fee, fine. All that mattered was that he parrot back the line we wanted to hear. Torture was used because it gets false information - the information we wanted. I hope that not even the "torture apologists" in this thread and elsewhere will defend that.

Leaving aside the truly important point that torture is morally indefensible in the first place. ["But look, here I am defending it, see? So clearly it is in fact defensible!" *facepalm*]
posted by zoinks at 2:47 AM on May 15, 2009 [1 favorite]

This is unfair. I wouldn't volunteer to be jailed for a day to win an internet argument, but jail isn't torture.
posted by ryanrs at 12:53 AM on May 15

If it's no big deal - if he's like, pshaw, it's not torture, then he should do it. Not to win an argument, but so that he can live with himself: he is advocating that we torture untried prisoners.

Hell, Hitchens did it and he's old and fat. I'm sure Marshall will come through with flying colors. Right, Marshall?
posted by Optimus Chyme at 6:33 AM on May 15, 2009

What would you do with Khalid Sheik Mohammed? Release him? He's a mass murderer.

Investigate, Indict, Arrest, Arraign, Try. ( Optional: Sentence and Capital Punishment )

Federal Criminal Procedure is pretty well documented these days. It ain't rocket magic.
posted by mikelieman at 6:47 AM on May 15, 2009

So an MP slaps a Korean at a checkpoint in Seoul and he has a right of action in US courts?

One would think the troops would be disciplined well enough that they wouldn't lose thier cool. But HYPOTHETICALLY, one would hope that the military would be able to discipline their troops without resorting to it.

I think I see your problem. You think the Constitution and Amendments GIVE THINGS to The People.

That is, of course, incorrect.

So, if a US Officer, Soldier, Agent, Employee or Contractor officially acts, those acts are limited *always* by the limits on the Government. Their oaths to protect and defend The Constitution and Laws doesn't expire when they cross national borders...

Of course, other opinions exist. And as long as the DOJ *chooses* to shit on their sworn oaths, and don't investigate this -- nothing will happen.

I still say the Jeppeson databases are fair game.
posted by mikelieman at 7:00 AM on May 15, 2009

The fact that you are arguing that it might be, in circumstances, justifiable, is not one I will engage, and has forever diminished you in my eyes. It's very disappointing that you would even attempt to engage such a discussion, or anybody would. It has produced nothing of documentable value, it is universally regarded as a social wrong, it is the favorite tactic of demagogues and mass murderers, and it is demolished the United States' moral authority in the world. We are not supposed to be the torturers. We are supposed to be the people who know better.
posted by Astro Zombie at 9:52 PM on May 14

You are confusing two different things. I am attacking on one hand the statement that "torture is never excusable" and as a completely separate question the legal issue of whether waterboarding was a crime at the time it was performed.

To the first question: I have said repeatedly that torture is morally wrong. I even drew an analogy to killing which is also always wrong.. But there are instances where killing is justified (a better word is 'excused' or perhaps understandable). It is a very strong statement to say that torture, like killing, is always wrong, but unlike killing, it is never excusable. You can't make this absolute statement unless you have contemplated every single conceivable scenario. Wrong but excusable - you have to hold both concepts in your head at once.

Waterboarding is wrong. But I can easily construct a scenario in which every single person in this thread would waterboard a perfect stranger and that action would be excusable. If I did that, you would all argue with the realism or outlandishness of the scenario as a way of avoiding the question, but that doesn't change the fact that given the scenario, you would all engage in behavior you think is wrong, thereby disproving the statement that it is never excusable. And the scenarios are not outlandish. They have played out over the course of history. The world does not exist as you wish it to, or even as you perceive it to. It exists independent of you, and your perception of it contemplates only parts and aspects of it skewed by your biases both cultural and personal. It is this way for all of us. That you don't want to engage the complexity doesn't mean it doesn't exist, it means you don't want to see the world for what it is, which is jungle populated by 6 billion animals.

So that's one point. The second point is not relevant to the first because the question of the morality of torture or if it is or isn't excusable are completely irrelevant to the specific facts we have here.

Those scenarios I alluded to are not the situation with waterboarding here. The issue of waterboarding in the cases relating to the Bush administration are a legal ones. Waterboarding as an interrogation technique for those alleged enemy combatants who did not adhere to the rules of war requiring them to wear uniforms, not hide among civilians or target them, etc. That's the situation. To make the legal case given the players and the stakes, you had better have a rock solid, iron clad case. You'd better have unimpeachable testimony under oath of witnesses, commanders, all the way up the chain, and their stories had better hold up and all be consistent when subject to a brutal cross-examination. And then you need to have all of your appellate legal arguments and theories worked out perfectly. You have to know all the defenses, and counter arguments ahead of time, as well as your counter-counter arguments. Because if you don't, you put someone on trial for waterboarding, and he's acquitted. And you've basically given the bad guys carte blanche to do it again because then the precedent will be on their side.

Saying something is morally wrong and wanting to prosecute cheney on that basis is cop out. It is easy, sloppy thinking. Abortion is morally wrong too. Even pro-choice advocates acknowledge it to be such. Abortion is legal for reasons completely divorced from questions of morality. Walking past the homeless guy in the street is morally wrong also. Everyone does it, even though it is extremely easy to do the morally right thing. You waste your breath by saying torture is morally wrong. We know its wrong. Everyone on the planet knows that. It has done absolutely nothing to stop it's use worldwide.

You want to engage this battle, with this opponent, you need to understand the law, what is says and what it doesn't. Yes, Cheney is a bad guy. Instead of spending his time trying to improve the country, he spent it looking for gaps in the law he could operate within to pursue an agenda he knew no one would endorse if he stated it overtly. That's the kids of guys he is. Credit to those of you who spotted that this is who he was early on, I didn't. But morality didn't fail the country here. The law did.

What annoys me is that whenever anyone suggests something outside the standard echo chamber arguments around here, they are crazy or stupid. Those are the only alternatives. No one can be coming at an issue from a different angle or with a different perspective. That's impossible. They are simply crazy or stupid. No one is allowed to articulate that subtle problems can fail an argument just as thoroughly as obvious ones. Why is that? Why is it so important not to hear what you don't want to hear? Why is it threatening? Wouldn't you rather know what people think if they think differently than you, rather than have them keep it secret and you remain oblivious?

We both have a model of the world, right? You have your model and I have mine. You are using your model, but you are shocked and amazed at the stuff that happens. You just can't understand how the things that have happened have happened without resorting to a third grader's view - Cheney is evil. It's like the right wing's view that Al Qaeda is evil, but directed inward instead of outward.

There is no good and evil. One man's terrorist is another man's freedom fighter. The villian is the hero of his own story. There is morally right and morally wrong, but there is nothing in the universe that enforces that but each individual for himself. Then there is the law, which only slightly overlaps with morality, which has a very real enforcement mechanism in this world that is imperfect, unfair, and often corrupt. If the villians are running rampant, it isn't because of moral confusion, its because of legal ambiguity. You want to constrain
posted by Pastabagel at 7:45 AM on May 15, 2009 [1 favorite]

Abortion is morally wrong too. Even pro-choice advocates acknowledge it to be such.

Speak for yourself, hombre.
posted by Optimus Chyme at 7:48 AM on May 15, 2009 [5 favorites]

Jesus, Pastabagel, you're a mess this morning.

First you say: Yes, Cheney is a bad guy. Instead of spending his time trying to improve the country, he spent it looking for gaps in the law he could operate within to pursue an agenda he knew no one would endorse if he stated it overtly. That's the kids of guys he is.

Then you say: You just can't understand how the things that have happened have happened without resorting to a third grader's view- Cheney is evil.

Do you see how ridiculous these statements are together?

Then: It's like the right wing's view that Al Qaeda is evil, but directed inward instead of outward.

What? People on the right and the left generally agree: Al-Qaeda is bad. But those on the left don't generally believe we should give up our humanity in fighting them, especially since doing so is tactically and strategically disadvantageous.

You waste your breath by saying torture is morally wrong. We know its wrong. Everyone on the planet knows that.

Apparently they fucking don't.
posted by Optimus Chyme at 7:55 AM on May 15, 2009 [1 favorite]

"I'm not sure that I would have done any different if I were in their shoes."

Well, I'm glad you weren't in a position of power, if your compass is so easily spun. It's precisely in the most difficult times we need to stick to our principles, and we need to recognize that although torture seems attractive in the face of overwhelming fear, IT DOESN'T WORK! It makes us look weak, it violates international, military and US law, and it puts our own soldiers in jeopardy. It is exactly the wrong reaction.
posted by krinklyfig at 8:28 AM on May 15, 2009

"You want to engage this battle, with this opponent, you need to understand the law, what is says and what it doesn't. Yes, Cheney is a bad guy. Instead of spending his time trying to improve the country, he spent it looking for gaps in the law he could operate within to pursue an agenda he knew no one would endorse if he stated it overtly. That's the kids of guys he is. Credit to those of you who spotted that this is who he was early on, I didn't. But morality didn't fail the country here. The law did. "

No, he thwarted the law, he lied about it repeatedly (until now), and it was easy to do given his position and the circumstances. We now must hold him to account, legally and morally.
posted by krinklyfig at 8:30 AM on May 15, 2009

There is morally right and morally wrong, but there is nothing in the universe that enforces that but each individual for himself. Then there is the law, which only slightly overlaps with morality, which has a very real enforcement mechanism in this world that is imperfect, unfair, and often corrupt. If the villians are running rampant, it isn't because of moral confusion, its because of legal ambiguity. You want to constrain
posted by Pastabagel at 7:45 AM

I like to think that it's right there that the Internet got embarrassed and just shut off.
posted by Skot at 8:50 AM on May 15, 2009 [2 favorites]

It is a very strong statement to say that torture, like killing, is always wrong, but unlike killing, it is never excusable.

I think you are the only one here who makes the statement that killing is always wrong.

Waterboarding is wrong. But I can easily construct a scenario in which every single person in this thread would waterboard a perfect stranger and that action would be excusable.

I don't believe you. I've got a vivid imagination, and I cannot imagine a scenario in which I would waterboard someone and it would be excusable.

One: It doesn't work. The ticking bomb thing, as has been repeatedly pointed out, is fiction. If I need information, waterboarding someone isn't going to get me the information I want, and if the waterboardee talks, I have no way of knowing if he's told me the truth. People will say anything when they're being tortured, because they want it to stop.

Two: If I were so enraged that I were to engage physically with a subject, it would be with fists and feet, not waterboarding. Understandable, yes. Excusable? No. It is never excusable to physically abuse someone you have power over, even if you're frustrated, even if you're desparate, even if you're scared. For chrissakes the guy's tied to a fucking chair and has shackles on. If I beat him, I only demonstrate that I'm not the one in control. Stupid.

Abortion is morally wrong too. Even pro-choice advocates acknowledge it to be such.

I am pro-choice and I do not acknowledge this. I do not believe it is morally wrong. I don't think I personally know anyone who is pro-choice who thinks it is morally wrong.
posted by rtha at 9:10 AM on May 15, 2009 [1 favorite]

Waterboarding is wrong. But I can easily construct a scenario in which every single person in this thread would waterboard a perfect stranger and that action would be excusable.

No, you can't.
posted by dirigibleman at 9:13 AM on May 15, 2009 [1 favorite]

The world does not exist as you wish it to, or even as you perceive it to. It exists independent of you, and your perception of it contemplates only parts and aspects of it skewed by your biases both cultural and personal. It is this way for all of us. That you don't want to engage the complexity doesn't mean it doesn't exist, it means you don't want to see the world for what it is, which is jungle populated by 6 billion animals.

just because we react in a different way to a set of circumstances that you might consider waterboard-worthy doesn't mean we have a faulty conception of reality
posted by pyramid termite at 9:43 AM on May 15, 2009

What annoys me is that whenever anyone suggests something outside the standard echo chamber arguments around here, they are crazy or stupid. Those are the only alternatives. No one can be coming at an issue from a different angle or with a different perspective. That's impossible. They are simply crazy or stupid. No one is allowed to articulate that subtle problems can fail an argument just as thoroughly as obvious ones. Why is that? Why is it so important not to hear what you don't want to hear? Why is it threatening? Wouldn't you rather know what people think if they think differently than you, rather than have them keep it secret and you remain oblivious? --Pastabagel

I just had to post this again because it was so good. I'm going to have t-shirts made up. Who wants one?
posted by MarshallPoe at 9:47 AM on May 15, 2009

I'm going to have t-shirts made up. Who wants one?

it might be more useful for you if you put it on a tank of water
posted by pyramid termite at 9:52 AM on May 15, 2009

I don't get it. Maybe you could explain.
posted by MarshallPoe at 9:54 AM on May 15, 2009

A tank of water, which will be used for waterboarding.

Some people - Pastabagel, apparently - believe that there is a grey area when it comes to torture. Other people do not believe there is a grey area. I don't advocate shutting discussion down, but I come from the perspective where there is no "discussion" about whether or not there are times when torture is appropriate. There isn't, in my view. And there isn't, in my view, a grey area in which waterboarding might or might not be considered torture. It is.
posted by rtha at 10:00 AM on May 15, 2009

maybe we can debate burning at the stake, too
posted by pyramid termite at 10:01 AM on May 15, 2009

What annoys me is that whenever anyone suggests something outside the standard echo chamber arguments around here, they are crazy or stupid.

Well, maybe that's because one of the most certain ways to end up making arguments that actually are either crazy or stupid is to take as your starting point the facile assumption that if certain popular arguments are too broadly-accepted*, they must somehow be mistaken.

That approach to constructing a position on an issue can lead to all sorts of crazy and stupid arguments, arguments that seldom amount to more than a kind of rhetorical snipe hunt, in which a series of deliberately obtuse, unexamined conclusions search foolishly for plausible-sounding rationalizations.

*...Which presumably is what you mean by "echo chamber," since the simplest explanation for why so many people might be repeating the same arguments is that they've begun to form some kind of consensus.
posted by saulgoodman at 10:07 AM on May 15, 2009

Waterboarding is wrong. But I can easily construct a scenario in which every single person in this thread would waterboard a perfect stranger and that action would be excusable. If I did that, you would all argue with the realism or outlandishness of the scenario as a way of avoiding the question

It's not avoiding the question, it's acknowledging that we have laws precisely to prevent that sort of vigilante decision-making. You're not allowed to kill someone in cold blood, even if most people would think it's "excusable" because they did terrible things that affected you personally. Every claim I see in this thread that "it's complicated" boils down to "I/we should have the freedom to break the law when I/we think it's justified." It doesn't work that way. At least, it shouldn't.
posted by Combustible Edison Lighthouse at 11:24 AM on May 15, 2009

"Those scenarios I alluded to are not the situation with waterboarding here. The issue of waterboarding in the cases relating to the Bush administration are a legal ones. Waterboarding as an interrogation technique for those alleged enemy combatants who did not adhere to the rules of war requiring them to wear uniforms, not hide among civilians or target them, etc. That's the situation. To make the legal case given the players and the stakes, you had better have a rock solid, iron clad case. "

Here's your rock solid case. The CAT makes no exceptions for when torture is permissible, nor does our military code nor US law, but the "illegal combatant" red herring relates to the CAT specifically, as it mentions lawful combatants. But the CAT also states explicitly that there is no legal exception which allows torture under any circumstances. This is not in dispute. The argument you cite was invented by the Bush administration as an excuse. It's not a valid legal defense.
posted by krinklyfig at 11:38 AM on May 15, 2009

So an MP slaps a Korean at a checkpoint in Seoul and he has a right of action in US courts?

One would think the troops would be disciplined well enough that they wouldn't lose thier cool. But HYPOTHETICALLY, one would hope that the military would be able to discipline their troops without resorting to it.

I think I see your problem. You think the Constitution and Amendments GIVE THINGS to The People.

That is, of course, incorrect.

So, if a US Officer, Soldier, Agent, Employee or Contractor officially acts, those acts are limited *always* by the limits on the Government. Their oaths to protect and defend The Constitution and Laws doesn't expire when they cross national borders...

Of course, other opinions exist. And as long as the DOJ *chooses* to shit on their sworn oaths, and don't investigate this -- nothing will happen.

Let me explain. Fifth Amendment rights only attach at trial. There is no remedy for a violation of the Fifth Amendment unless a trial occurs:

Although conduct by law enforcement officials prior to trial may ultimately
impair that right, a constitutional violation occurs only at trial.” 494 U.S. at 264 (citing Malloy v. Hogan, 378 U.S. 1 (1964); Kastigar v. United States, 406 U.S. 441, 453 (1972)). The Fourth Amendment “functions differently”; it is violated “at the time of an unreasonable governmental intrusion.” Id. (citing United States v. Calandra, 414 U.S. 338, 354 (1974); United States v. Leon, 468 U.S. 897, 906 (1984)). Accordingly, the Fourth Amendment’s prohibition of unreasonable searches and seizures regulates the activities of the government when investigating crimes, while the Fifth Amendment’s privilege against
self-incrimination regulates the admissibility of a defendant’s statements at trial.

There you have it--Although a trial against these persons may fail (a key argument against torture), there is no right of action to correct these violations before trial.

As I said above, it is critical that in our watercooler and internet conversations, we don't just shoot off our mouths, especially about issues we are not trained to discuss. Because we are likely to be corrected and lose credibility.
posted by Ironmouth at 12:09 PM on May 15, 2009

Here's your rock solid case. The CAT makes no exceptions for when torture is permissible, nor does our military code nor US law, but the "illegal combatant" red herring relates to the CAT specifically, as it mentions lawful combatants. But the CAT also states explicitly that there is no legal exception which allows torture under any circumstances. This is not in dispute. The argument you cite was invented by the Bush administration as an excuse. It's not a valid legal defense.

Agreed there. No doubt about it.
posted by Ironmouth at 12:10 PM on May 15, 2009

Every claim I see in this thread that "it's complicated" boils down to "I/we should have the freedom to break the law when I/we think it's justified." It doesn't work that way. At least, it shouldn't.

Incorrect. My arguments that it is complicated don't apply to the conduct of the interrogators, which was undoubtedly torture, it applies to the difficulty of prosecution given the defenses open to the interrogators in a personal sense, not the right of the government to engage in torture. My argument from the first has been (1) Prosecutions are difficult due to potential defenses of the interrogators; (2) Prosecutions will crystallize political support for torture and make it harder for us to make the more important case--that torture is morally wrong and produces bad results on every level. It will take attention off of the people who it should be on--the people who ordered the interrogations.

Look, I think Stanley Milgram proved that there will always be people willing to take orders to do this stuff. What needs to happen is the GOP has to pay an incredible price for engaging in this activity. The people who ordered it need to pay in a dear, political sense. That will deter others in future.
posted by Ironmouth at 12:16 PM on May 15, 2009

it is critical that in our watercooler and internet conversations, we don't just shoot off our mouths

You must be new here.
posted by Skot at 12:18 PM on May 15, 2009 [2 favorites]

Josh Marshall writes: The whole point of this storm about Pelosi is that her critics want her to be embarrassed and stop supporting a Truth Commission or any sort of examination of what happened. But she's not. She still says there should be an investigation. Her critics still want the book closed. That says it all. She'll have to stand or fall with the results of an actual investigation.

With Pelosi's poll numbers now dipping at precisely the time when they should be seeing an uptick among those who want investigations (in light of her recent strong statements about the immediate necessity for a truth commission or similarly broad investigations into every aspect of the torture issue), why shouldn't she change her position and backtrack now? It's not like she's seeing any political benefit from doing the right thing. The press barely even seemed to notice her call for an investigative commission, though by all rights that should be the big news right now. Hmm. Wonder why? If Pelosi's dipping poll numbers now force her to back peddle on pursuing a truth commission owing to her now weakened position, the Republicans will be able to call it a victory for their side, and progress on the torture matter will be set back again.

Clap. Clap. Bravo. Just a stunning show all around.
posted by saulgoodman at 12:30 PM on May 15, 2009

Second, your interpretation would give enemy soldiers in a war a right of due process when shot by American soldiers

Of course, with a Formal Declaration of War, the rules are different, so it's disingenuous to compare the situation NOW with a real War.

We are NOT AT WAR. Only Congress can declare war. Congress hasn't.
posted by mikelieman at 12:42 PM on May 15, 2009

My arguments that it is complicated don't apply to the conduct of the interrogators, which was undoubtedly torture, it applies to the difficulty of prosecution given the defenses open to the interrogators in a personal sense

To misquote Wanda Sykes: "Sure I robbed a bank, but just look at all the bills I paid!"

Ignorance of The Law is no excuse and your attorney's opinion might be wrong. Get a second one, and remember that in any event YOU retain full liability for YOUR CHOICE to violate the Law.

Don't do the Crime, if you Can't do the Time.
posted by mikelieman at 12:44 PM on May 15, 2009

Did you read that whole appellate decision?

We are representatives of the United States Government. Under our laws, you have certain rights.

That's a pretty damning piece of evidence supporting the whole "Rights exist, and US Gov't agents cannot infringe upon them."

And isn't there a whole civil claim founded on deprivation of rights?
posted by mikelieman at 12:52 PM on May 15, 2009

We are NOT AT WAR. Only Congress can declare war. Congress hasn't.

Yes we are, and yes they did. In fact, they declared it twice, using exactly the same language to make it clear it was intended to be equivalent to a formal declaration of war consistent with the War Powers Resolution:

See here:

(c) War Powers Resolution Requirements.--
(1) Specific statutory authorization.--Consistent with
section 8(a)(1) of the War Powers Resolution, the Congress
declares that this section is intended to constitute specific
statutory authorization within the meaning of section 5(b) of
the War Powers Resolution.

And here:

(b) War Powers Resolution Requirements.--
(1) Specific statutory authorization.--Consistent with
section 8(a)(1) of the War Powers Resolution, the Congress
declares that this section is intended to constitute specific
statutory authorization within the meaning of section 5(b) of
the War Powers Resolution.
posted by saulgoodman at 12:56 PM on May 15, 2009

“Sometimes I am more amazed at our side than the GOP.”
Who’s “our side”? There’s law and rectitude and there’s otherwise. I’ll grant the political considerations are a practical concern. And I’ll grant that the more heinous acts should have all the heat first. But if Pelosi had something to do with it (and that’s a fairly large if) and if there’s proof she did something illegal – she should be subject to prosecution.
That of course does not address some of your other points which I think are valid observations.

“What would you do with Khalid Sheik Mohammed? Release him? He's a mass murderer.”
Did we torture him? You see the dilemma. Sucks.

“HOEKSTRA: There is a wide range of waterboarding.”

Hoekstra: I am not a homosexual because there is a wide range of giving oral sex to or receiving anal sex from other men.

“But I can easily construct a scenario in which every single person in this thread would waterboard a perfect stranger and that action would be excusable.”

Such as if we had massive investment in the defense contractors and we were the vice presidents of a large country and wanted to manufacture evidence in order to go to war to loot a foreign nation? Yeah, I can totally see that.

Pastabagel, I’ve put more men in the ground than you’ve had hot breakfasts, I’ve been in that f’ing jungle and I guarandamntee you if waterboarding were in some way more effective in saving lives, in protecting the country, in getting information, if there were anything good that could come out of it - I would have used it. I wouldn’t have thought it moral, but I would have taken the hit, cast myself as the villain and devil and bit my lip and done evil that good may come.

But the fact is it does not work. No good can come of it. Killing is evil. But there are circumstances under which we *must * kill and I can live with that consolation. There are no circumstances under which we must torture, there is no excuse or exemption for doing that evil.

If one of my children were trapped in a room and the air was running out or there was a ticking time bomb and I had to find out where they were, I wouldn’t torture the man I knew placed them there.

Now, AFTERWARD if they died as a result, I’d probably torture the bastard so long he’d think he was already in hell. But that’s only because I would have lost my mind.

I will concede my behavior under such circumstances could be excusable (by reason of insanity) but madness and insane rage aren’t the best basis for policy decision making.

“Waterboarding as an interrogation technique for those alleged enemy combatants who did not adhere to the rules of war requiring them to wear uniforms, not hide among civilians or target them, etc.”

So it’s ok for our guys to be tortured because they wear battle dress camouflage? What’s a ‘uniform’ in this day and age? That’s an archaic law written under completely different circumstances. The British were pissed off the Green Mountain boys didn’t stand up in nice neat regiments and fire repeating barrages too. Pretty sure Ethan Allen didn’t wear a ‘uniform’ before the irregulars got regulated.

Anyway, that is covered by the laws of war. That was always a throw away line by Bushco to build this improbable construct that the enemy we were fighting was somehow ‘new.’ Guerilla war and terrorism is ancient. It’s only come into its own because of the modern portability of firepower (and explosives) and communications technology.

“There is no good and evil.”

Uh huh. I saw a group of armed men rape and murder women and young girls. Until I got into range. Want to tell me I’m the villain from their standpoint? Because I’m pretty sure they knew they were wrong. And I’m pretty sure I was right. And I’m pretty sure I would have died to succeed in what I was doing. Pretty sure they wouldn’t die to continue to do what they were doing. The fact that we won and they broke is fairly strong evidence of that. So I have practical experience in some of these matters.

Speaking to the theory – it might appear that good and evil are relative, but that’s only because there’s being and there’s seeming. That people erect arguments to justify – to themselves or the world – the reasons for their acts. These may be plausible or they may be silly, but they do illustrate that there are alternatives to acting in a certain way.
There are always alternatives to torture. There are not always alternatives to killing.
And Socrates gives a handy rule of thumb (which I used above) we establish good by indicating what we will die for. Death can be evil (although generally speaking Socrates said it was the greatest blessing of mankind) but torture is always evil.

That we have such alternatives in our knowledge always before us whereby we can choose good or evil, is not, as such, evil, nor does it mean that there are no good or evil acts. Good or evil conceptually – different story. But there we have the luxury of talk.

“Why is that? Why is it so important not to hear what you don't want to hear? Why is it threatening? Wouldn't you rather know what people think if they think differently than you, rather than have them keep it secret and you remain oblivious?”

Argue theory all you want. I see you torturing someone, I’m going take your life or die trying. After the fact, I’m going to seek justice. We might differ on the best methods to seek justice, on what basis, but on the push itself – there is no ambiguity.

Why, I must ask, do you seek ambiguity in this matter?

One can argue cultural relativism, but there are strong, nearly universal, and fundamentally practical taboos against incest, rape, cannibalism, a number of harmful practices.
In an ancient civilization, I might seem quaint or effete for my notions that no human should enslave another, or that superficial differences in skin tone are irrelevant among humans (especially so because of the genetic bottle neck 75,000 to 100,000 years ago that makes an Inuit and a Madagascar fisherman more similar than two chimps in the same region in Africa).

That they dispute my opinion does not mean that it is open to debate (other than at the point of a spear, which I'm more than willing to entertain).
On the contrary – their opinion is based on ignorance and prejudice. Mine is based on years of scientific research and cultural tradition and experiment in the most practical efficient methods of social interaction

Again – why I’m philosophically conservative – those methods that survive and form institutions over time have proven themselves successful in technique – if they are supplanted it should be by a technique that is fully proven, so I’m slow to change.

Torture however was outmoded thousands of years ago. As far back as the ancient Greeks – Socrates proved that self-serving aims in power was an intellectually untenable position and unstable. (They continued to use it – but we consider them primitive as any other culture that tolerated certain practices we know to be harmful)

Your, and others’, arguments seek to reassert the opposition point with a mere change in window dressing.

Torture is not a technique subject to debate among anyone with any knowledge of it any more than issues in whether a given ‘race’ or ethnic group should be disenfranchised politically or marginalized socially based on some inept theorizing used to assuage feelings of social inferiority or discomfort among a dominant population.

Is racism ‘evil’? Most certainly. Why? It’s not merely because it makes us feel better. Nor is it solely that science proves there is so little difference between human beings.
No, racism is evil because cannibalism is evil because incest is evil – because any method of interaction that leads to dire consequences for humans – such as, in the case of cannibalism, horrible diseases and spread of them, malnutrition, self-predation, or in the case of incest, birth defects, myopic thinking, etc. etc.

That which we call evil almost always has a solid practical foundation for the taboo against it.
So too is it with torture.

Now, you can argue for all the great reasons on an individual basis why it would be so swell to fuck your sister or your mother, or to kill, gut, and devour them – but you’re not going to get a lot of open mindedness on the issue.

People are not going to want to hear about it. People are going to be threatened by it. People do not want to know that other people think differently on this kind of topic with the exception that maybe they’d like to know who they are so they can move the hell out of their neighborhood.

So I have to ask – as I would with incest or cannibalism – why is there any room for ambiguity as to why this is wrong, illegal, and a practice that should be vigorously stamped out as the threat to society that it is, as soon as it is recognized?

And don’t hand me this “you don’t know what the world is like” bullshit when I’ve got more blood on my hands and made more decisions that keep me up nights than you’ll ever know. And everyone else who’s ever fucking been there or in the shadows of it, or knows what the hell I’m talking about, agrees with me.
It's all the assholes in the backrooms with the soft hands mewling "well, if you don't kill someone it's ok to do anything less" that don't actually DO anything that are pushing this agenda. But such is the nature of cowards. One wouldn't expect moral courage from one with out any otherwise.
posted by Smedleyman at 1:17 PM on May 15, 2009 [11 favorites]

Yes we are, and yes they did.

How's that work, given the criminal fraud ( in violation of 18 USC 371 ) used to obtain such authorization?
posted by mikelieman at 1:31 PM on May 15, 2009

I’ll add – torture, ultimately, is a bluff playing on power you don’t have. If there is a ticking time bomb scenario – the guy only has to figure out what it is you want to hear or what’s plausible enough to stop you from torturing him long enough for the bomb to go off.
Without the threat of death behind it, torture is useless. Torture with the threat of death behind it – is fallacious – because if the information isn’t important enough to keep the man alive for it, why not just kill him?
I suspect, from the Bushco POV, they embraced torture as an outcropping of this “We don’t negotiate with terrorists” b.s.
That is, perhaps, the kindest possible thing I can say about them.
In any case – whatever their motivations – they were fundamentally wrong. Because if someone has information you want, and they are willing to die before they give it to you, they have the upper hand. The matter is one of persuading them that it is better to live and give you the information than it is to die.
Torture is NOT going to do that.
There is no circumstance under which torture is going to convince someone that living under your tender mercies is appealing in any way.
So it’s a forced bluff. A limp façade of power where none exists.
In contrast to an actual working tool in the execution of power – a firearm, say.
Which is not a magic wand by any means, but it is a legitimate assertion. Give me the information or I will kill you. Straightforward argument that.
But again – it’s the same conundrum. Is life going to be better with me telling you than death?
And too, negotiation is the most commonly used, and the most successfully used, counterterrorism tactic. Because the objective is not death , but typically to get the message out. Death is sometimes a means, in the case of a suicide bomber.
But it’d be ridiculous to torture a suicide bomber as well. Or, really, threaten to kill them. You would have to convince them that life is worth living and that their message or ethos – whatever it may be – is better served by living.
That the administration wished to torture is evidence of a forced agenda. As much as the aims of a suicide bomber.
This is simple mechanics. A given message requires a certain kind of medium.
A suicide bomber’s act carries meaning as much as the target of his bomb. So too – torture carries its own kind of meaning. The details of the agenda are open to debate (although I believe the evidence highly favors some things) but what is not an open question is the closing of the dialogue and the use of force in driving that agenda.
No question at all there. As blatant a thing as a suicide bomber.
Plenty more to analyze there, but it’s a big digression.
posted by Smedleyman at 1:38 PM on May 15, 2009

Oh, and Congress is only empowered by the Constitution to Declare War. Wouldn't the creation of another class of action be unconsitiutional?

I think "Dirty" Gonzales summed it up best:

GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.
posted by mikelieman at 1:38 PM on May 15, 2009

How's that work, given the criminal fraud ( in violation of 18 USC 371 ) used to obtain such authorization?

That hasn't been ruled on by any legal body with the authority to make such a ruling. Under the US constitution and US legal tradition, the legal process is the law (nation of laws not of men, etc., remember? ).

If something looks like a criminal act, we might put it to the test of the law to determine whether it is, but it's not a criminal act--whatever our opinion of it--until a formal legal process has ruled it so. That's a fundamental principle of the American legal system and always has been.

Congress did declare war. Whether they should have or not, or whether the declaration should be invalidated by other possibly criminal acts leading up to it, is a fair debate. But war was formally declared: Congress has the sole discretion to declare war. It did. Twice. No court of law has yet ruled those declarations invalid. That's the plain truth and it's beyond dispute, no matter what you or I might think the truth ought to be.
posted by saulgoodman at 1:55 PM on May 15, 2009

First both of you guys are going to need to cite precedent for that.

You first.
posted by oaf at 1:58 PM on May 15, 2009

Oh, and Congress is only empowered by the Constitution to Declare War. Wouldn't the creation of another class of action be unconsitiutional?

The constitution doesn't specify what form congress should use to declare war or even that a formal "Declaration of War" is needed:

A declaration of war is a formal declaration issued by a national government indicating that a state of war exists between that nation and another. For the United States, Article One, Section Eight of the Constitution says "Congress shall have power to ... declare War;" however, that passage provides no specific format for what form legislation text must have to be considered a "Declaration of War" nor does the Constitution itself use this term.

This was supposed to clarify the law. And this is what both congressional authorizations specifically cite as their legal basis.
posted by saulgoodman at 2:04 PM on May 15, 2009

More media coverage on "Cheney's office" ordering torture, seeking to prove Al Quaeda/Iraq link.
posted by ericb at 2:05 PM on May 15, 2009

Pelosi’s Claims Getting Much More Media Scrutiny Than CIA’s Assertions.
posted by ericb at 2:06 PM on May 15, 2009

How the hell can there be any question about prosecution? Unbelieveable.

Agreed. Let's quit being duped into running down everybody who starts to get serious about investigating, throw support behind them instead, and do the damn thing already.
posted by saulgoodman at 2:08 PM on May 15, 2009

Former Senator Bob Graham: CIA Gave Me False Information About Interrogation Briefings

"In testimony that could bolster Speaker Nancy Pelosi's claim that the CIA misled her during briefings on detainee interrogations, former Senator Bob Graham insisted on Thursday that he too was kept in the dark about the use of waterboarding, and called the agency's records on these briefings "suspect."

In an interview with the Huffington Post, the former Senate Intelligence Committee Chairman said that approximately a month ago, the CIA provided him with false information about how many times and when he was briefed on enhanced interrogations....[more]."

posted by ericb at 2:11 PM on May 15, 2009

Second, your interpretation would give enemy soldiers in a war a right of due process when shot by American soldiers

Of course, with a Formal Declaration of War, the rules are different, so it's disingenuous to compare the situation NOW with a real War.

We are NOT AT WAR. Only Congress can declare war. Congress hasn't.

OK, I'm going to appeal to authority now, because I can't seem to get you to engage with actual case cites or any other support of your argument.

I'm a lawyer. I defend federal employees (law enforcement) from precisely the type of claims you are discussing. (I don't defend CIA people). I know the law in this area backward and forwards. I have been involved in multiple cases involving lawsuits against federal and state officers.

You don't know what you are talking about. You have no idea. You are just making shit up. You have cited exactly zero case law to support your untenable idea of the extension of civil liability to federal officers.

Please point to actual statute or legal precedent (case law) which supports your claim that whatever a government employee does and whereever he goes, foreign nationals have a right of civil action against federal officers under the Constitution.

You won't find any because there is none.

Nor does 18 U.S.C. s 371 apply to any part of any torture case. Don't believe me? Read the DOJ Criminal Resource Manual for a description of the statute.

It applies to conspiracies to commit frauds against the United States. A political statement, lie or not, by George W. Bush or Dick Cheney is fully protected by the First Amendment. Indeed, any such statement would not be cognizable by the courts as a fraud or a conspiracy to commit anything under the "political question" doctrine, which is as old as the court itself. See Nixon v. U.S.

Nor is Congress or the American people the United States under that statute. You cannot say that a single representative is the United States and the President is not.

Furthermore, a rock-bottom rule of conspiracy is that there must be another crime to be conspired to be committed. Read the statute:

If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more of
such persons do any act to effect the object of the conspiracy,
each shall be fined under this title or imprisoned not more than
five years, or both.
If, however, the offense, the commission of which is the object
of the conspiracy, is a misdemeanor only, the punishment for such
conspiracy shall not exceed the maximum punishment provided for
such misdemeanor.

There must be conspiracy to "commit any offense." What offense is being committed here? There is no other statute which you allege Bush and Cheney were breaking to defraud the US. Therefore no prosecution would lie.

What I think might be more productive is if you let us know where you are getting the idea that somehow 18 U.S.C. 371 applies.

As I've said again and again, you cannot just read the statute and expect to understand the law. You have to read it in conjunction with other code sections and case law.

OK, I guess I didn't appeal to authority, because I had cites too. I can't help myself, I must always back up my arguments.

In short, you are just making things up. It is critical that those of us who oppose torture get our facts and law right so that we do not lose credibility when presenting our arguments to our fellow citizens. It is them we must convince.
posted by Ironmouth at 2:12 PM on May 15, 2009

Colin Powell's Top Aide, Col. Lawrence B. Wilkerson: Interrogations Approved Well Before The Justice Department Had Rendered Any Legal Opinion"

"Likewise, what I have learned is that as the administration authorized harsh interrogation in April and May of 2002--well before the Justice Department had rendered any legal opinion--its principal priority for intelligence was not aimed at pre-empting another terrorist attack on the U.S. but discovering a smoking gun linking Iraq and al-Qa'ida."

posted by ericb at 2:15 PM on May 15, 2009

For some reason my brain put in something I wrote instead of what you were quoting, but the point still stands that government-ordered actions that are violations of the U.S. constitution in the United States are still violations of the U.S. constitution if they occur in Poland but all other facts are the same, unless specified otherwise.

The default condition is not that the Constitution applies to rights on U.S. soil, but that it applies with rights with respect to the U.S. government.

This is a fundamentally incorrect position. The U.S. Constitution does not regulate the behavior of US officers against foreign nationals on foreign soil until a criminal prosecution is brought. In other words, a foriegn national held by US military forces on foreign soil has no constitutionally-based cause of action. If it were so, every bomb dropped by the US in every war, declared or otherwise, would give rise to a cause of action. Think of it this way--if the Constitution prohibited the taking of rights from non-citzens living in other countries, then those killed by a bomb (the right to life cannot be taken away by the US government without due process, you argue), would be able to sue the US for having taken their life.

Prisoners of war would be able to sue the US as well. Their alleged 4th Amendment right as postulated by you would allow them to be set free. they would be entitled to a hearing upon capture.

This is exactly wrong. You can find no cite to support your case. None. Meanwhile, I have provided multiple cites to support my argument.

I'm going to appeal to authority one more time. Have you ever gone to law school? Taken con law? Passed a bar exam in any state or territory? No.

These are very, very complex questions. They can't just be analyzed away with a statement that the Constitution follows the flag. It most certainly does not. Instead, the answer is that in some cases it follows the flag and in others it does not.

Furthermore, you don't even address the question of jursdiction. How does a US court get jurisdiction over the actions of US persons abroad? Can a US court convict a person of smoking weed in Amsterdam? No. It lacks subject matter jurisdiction and likely in personam jurisdiction as well.

My point is this-we all wish there was a law which would clearly make it easy to punish these fuckers easily. But our system of laws is a system of competing values--the idea that a court must have jurisdiction over the person and the subject matter is one of those values. We also value no torture and wish that there was a way that a court could get jurisdiction over those actions. It isn't always possible becasue our laws are set up to follow certain rules. That's what makes prosecution difficult.
posted by Ironmouth at 2:30 PM on May 15, 2009

Of course, with a Formal Declaration of War, the rules are different, so it's disingenuous to compare the situation NOW with a real War.

Please support this statement. Because your earlier statement was that whatever action an American government employee did against someone, the constitution applied. Now you've created and exception, but have provided no support for it.
posted by Ironmouth at 2:32 PM on May 15, 2009

Pish-posh regarding waterboarding. That is the least of the crimes committed.

America tortured children.

How the hell can there be any question about prosecution? Unbelieveable.

Think of it this way--Federal Agents knew for a fact that Al Capone ordered a lot of people killed at the St. Valentine's Day massacre. Was he ever prosecuted for it? No. They got him on tax evasion. Why? Because the circumstances of the case made it impossible for a credible prosecution to be brought.

It isn't as easy as you think.

Also people are going to have to support the torture of children claim. Yoo said some unsupportable bullshit about it, but I haven't seen any evidence of it and I'm obssessed with this stuff.
posted by Ironmouth at 2:38 PM on May 15, 2009

Ironmouth, the fact that you're making sweeping, absolute statements about the Constitution indicates that if you did ever take a class on it, it was beyond you.
posted by oaf at 2:44 PM on May 15, 2009

Where does the Constitution say it applies only on U.S. soil?

Points off for having to use the word "penumbra" to justify your claim.
posted by oaf at 2:54 PM on May 15, 2009

Think of it this way--Federal Agents knew for a fact that Al Capone ordered a lot of people killed at the St. Valentine's Day massacre. Was he ever prosecuted for it? No. They got him on tax evasion. Why? Because the circumstances of the case made it impossible for a credible prosecution to be brought.

Sure, but the feds didn't have photos and videos of Capone killing people, they didn't have a paper trail of Capone telling his guys to kill people, etc. But I'll reiterate, there are people arguing that we shouldn't even investigate possible wrong doing. It may turn out there is no case for a credible prosecution, but that has nothing to do with investigating things.

Also people are going to have to support the torture of children claim.

Hersh reported on it and there's supposedly video that has yet to be released. I vaguely recall a Republican senator mentioning something about it, but the only thing I can find is a quote by Lindsey Graham: "The American public needs to understand we're talking about rape and murder here. we're not just talking about giving people a humiliating experience."

I want to say it was Lugar, but teh Google is failing me.
posted by ryoshu at 2:55 PM on May 15, 2009

Ironmouth, the fact that you're making sweeping, absolute statements about the Constitution indicates that if you did ever take a class on it, it was beyond you.

Let's look at who made what statements and see if you are correct. A little quiz, who made what statement?

(a) The Fifth Amendment applies on U.S. soil and to the U.S. government, wherever it is. If the U.S. government is doing it, it could be on Mars and the Fifth Amendment would apply. A sweeping statement.

(b) Were U.S. persons, employed by the U.S. government and acting purely in that capacity, doing the interrogation? Yes? Then that restriction on the government restricts the government. It's in no way comparable to an MP slapping some guy in an airport, which probably isn't a government action.

The U.S. government must exist within the Constitution; it does not exist without it. A sweeping statement.

(c) The default condition is not that the Constitution applies to rights on U.S. soil, but that it applies with rights with respect to the U.S. government. A sweeping statement.

(d) These are very, very complex questions. They can't just be analyzed away with a statement that the Constitution follows the flag. It most certainly does not. Instead, the answer is that in some cases it follows the flag and in others it does not. Not a sweeping statment, says that the matter is complex and depends.
OK

Here are the answers:
(a) Oaf--Sweeping
(b) Oaf--Sweeping
(c) Oaf--Sweeping
(d) Ironmouth--Not Sweeping.

In this entire argument I'm the only person to cite anything. You and Mikelieman have cited exactly nothing.
posted by Ironmouth at 3:02 PM on May 15, 2009

Sure, but the feds didn't have photos and videos of Capone killing people, they didn't have a paper trail of Capone telling his guys to kill people, etc. But I'll reiterate, there are people arguing that we shouldn't even investigate possible wrong doing. It may turn out there is no case for a credible prosecution, but that has nothing to do with investigating things.

I'm all for investigations. There are investigations proceeding right now, both in Congress and the Justice Department. What do you think the hearing was all about? I just am trying to tell people that prosecutions are going to be really, really hard, based on my experience defending government employees in analogous situations. Political is the way to go.
posted by Ironmouth at 3:04 PM on May 15, 2009

Hersh reported on it and there's supposedly video that has yet to be released. I vaguely recall a Republican senator mentioning something about it, but the only thing I can find is a quote by Lindsey Graham: "The American public needs to understand we're talking about rape and murder here. we're not just talking about giving people a humiliating experience."

I want to say it was Lugar, but teh Google is failing me.

That claim is 5 years old. Still no video. I'm not saying it didn't happen, I'm saying we have no evidence as of yet--we need to be really careful here and make sure that our claims are fully backed up. What we know was done is bad enough to make our case. Let's save the rape claims until we have the actual reporting in a news story, not just a speech. Ever since that crap with the "Bush Letter" in 2004, the right-wing thugs have been looking for errors and mistakes in our stories in an attempt to focus on that.

I put on cases for a living and I do best when I stick to what I can prove. We have enough here where we can prove that torture occured. Put that out there and let them defend it. They can't do it. Make them try. Don't give them the opportunity to turn this into something else.

Plus Abu Grahib can be dissmissed by those assholes by special pleading. That wasn't interrogation, it was rouge elements, those weren't approved techniques etc. We all know that there was a culture of lawlessness that was imported there, but it is a hard case to make.

We need to focus on Cheney looking to justify Iraq, especially after the invasion--that's a use of torture for purely political purposes. The more we focus on that in our water cooler conversations, the better.
posted by Ironmouth at 3:15 PM on May 15, 2009

What do you think the hearing was all about?

To give Lindsey Graham a chance to be a douchebag?

I just am trying to tell people that prosecutions are going to be really, really hard, based on my experience defending government employees in analogous situations. Political is the way to go.

IANAL, let alone one that has argued qualified immunity, so I'm not sure how difficult prosecutions would be. I don't know if there is enough information to say either way. Tackling this politically would be a bad idea since it would devolve into a partisan slug fest.

From my limited knowledge of how federal prosecutors operate, if there's enough evidence to pursue an indictment, the prosecutor would flip the guys at the bottom to get the conspiracy charges up the food chain (which in this case carry the same penalty as physically committing torture thanks to the PATRIOT Act). Less than three months out and the drip, drip, drip is already getting pretty bad.
posted by ryoshu at 3:17 PM on May 15, 2009

In this entire argument I'm the only person to cite anything.

You've cited precisely nothing since turning your attention to me. But if you're going to cherry-pick...

This is exactly wrong. A sweeping, absolute statement.
This is a fundamentally incorrect position. A sweeping, absolute statement.

And, by the way, this?

The U.S. government must exist within the Constitution; it does not exist without it. A sweeping statement.

You're right about it being a sweeping statement. Like it or not, it's also correct. If the Constitution doesn't define the government, it didn't bring that government about, and you're going to need to start learning new names for things, like (for example), R. v. Hamdan.
posted by oaf at 3:22 PM on May 15, 2009 [1 favorite]

From my limited knowledge of how federal prosecutors operate, if there's enough evidence to pursue an indictment, the prosecutor would flip the guys at the bottom to get the conspiracy charges up the food chain (which in this case carry the same penalty as physically committing torture thanks to the PATRIOT Act). Less than three months out and the drip, drip, drip is already getting pretty bad.

It is more than just "enough evidence"--it involves an evaluation of the possible defenses to be put out there. The thing is that these memos give a pretty good defense. That's why they were written. I am concerned about the political effect of prosecutions. They will create Lt. Calleys of all of the torturers. They will become the focal point, not the victims.
posted by Ironmouth at 3:31 PM on May 15, 2009

That claim is 5 years old. Still no video.

No video has been released at all. I'm not sure if that's part of what the Obama administration is delaying the release of, but if Sen. Graham was right we haven't seen any rape related photos or videos out of Abu Ghraib.

We need to focus on Cheney looking to justify Iraq, especially after the invasion--that's a use of torture for purely political purposes.

I agree this is the what an investigation should focus on. People can hand wave about ticking time bombs and other Jack Bauer fantasies when trying to justify the torture of terrorists. Torturing people to provide non-existent links to make a political case? That's a whole different situation.

If it's true that the OVP wanted to torture an Iraqi POW, well, that shows intent of some sort.
posted by ryoshu at 3:32 PM on May 15, 2009

Abortion is morally wrong too. Even pro-choice advocates acknowledge it to be such.

Wrong. And Wrong.

What a pathetic appeal to a non-existent consensus.

Pathetic. Pastabagel you are all over the place in this thread. It's fucking sad. I too had respect for you. But seriously this performance of your in this thread is straining credulity to the point of pain. Your argument has been soundly thrashed by at least four different posters and still you go on and on.

You waste your breath by saying torture is morally wrong. We know its wrong. Everyone on the planet knows that. It has done absolutely nothing to stop it's use worldwide.

Oh for fuck sake. Everybody DOES NOT KNOW. Clearly.

Here we are arguing becuase members of the United States Congress (and sickening number of idiots on this board - one is too many) are attempting to tell us it's NOT wrong. By playing these idiotic "gray area" scenario and semantic definition games. Nuance my ass. Waterboarding is torture. Enough with the fucking bullshit.

There is NEVER—NEVER—an excuse for a political community to except torture as any form of "policy". This is what we are talking about. We are not talking about torturing some pedophile to find the whereabouts of your poos abducted child. Okay. This is precisely the point. We don't policy defined by people with such emotional irrational motives.

Yes. I can see every single possible scenario a pollitical community may find itself involved in. I am a fucking genius like that.

The nuance you claim we are belittling you over is not nuance. It is equivocation, apologia, and poor post-facto rationalizing. And this horrible, but very articulate, Realpolitik argument you keep positing doesn't even make any sense anymore.

If nobody is guilty of torture it is you. And the victim is logic.
posted by tkchrist at 3:34 PM on May 15, 2009 [1 favorite]

This is exactly wrong. A sweeping, absolute statement.
This is a fundamentally incorrect position. A sweeping, absolute statement.

My statements were about your positions, not the constitution.

What exactly, exactly about Hamdan supports your position? Just read the opinion and cut and paste. If you can find actual language in the case, then put it out there. Make an argument, not just a bald statement.

Listen, I wish that the state of the law was such that these would be open and shut cases as many here seem to think. But they are not and that has to be taken into consideration in deciding what to do.
posted by Ironmouth at 3:35 PM on May 15, 2009

If ANYbody is guilty of torture it is you. And the victim is logic.
posted by tkchrist at 3:36 PM on May 15, 2009

I agree this is the what an investigation should focus on. People can hand wave about ticking time bombs and other Jack Bauer fantasies when trying to justify the torture of terrorists. Torturing people to provide non-existent links to make a political case? That's a whole different situation.

As the first commenter said--this is the holy grail. We should be focusing on those who ordered the torture--they are the persons who should be paying the price.
posted by Ironmouth at 3:37 PM on May 15, 2009

What exactly, exactly about Hamdan supports your position?

...that wasn't my point, other than that the case against Hamdan is actually called U.S. v. Hamdan.

I'll repeat, again, that the U.S. government exists within the bounds set by the Constitution, because it would not exist at all otherwise.
posted by oaf at 3:46 PM on May 15, 2009

If nobody is guilty of torture it is you. And the victim is logic.

Don't make me pull out my vice grips of no true Scotsman.
posted by ryoshu at 3:50 PM on May 15, 2009

We should be focusing on those who ordered the torture--they are the persons who should be paying the price.

But how do we get to those who ordered it without testimony from those people who actually committed it if we can't put pressure on them because they were in a magical land where laws don't apply? Why even bother?
posted by oaf at 3:51 PM on May 15, 2009 [1 favorite]

Last night Rachel Maddow interviewed the author of the Daily Beast piece and Charles Duelfer, the guy who was in charge of investigating WMD in the aftermath of the invasion: Duelfer and Windrem Spotlight Iraq-al Qaeda Intel Program.

Watch that. Everybody. As annoying as Maddow can be that piece is stunning. If Marshal Poe or anybody else needs any more proof? There it is. Right in that link.
posted by tkchrist at 3:53 PM on May 15, 2009

That link. Sweet jesus.
posted by five fresh fish at 6:13 PM on May 15, 2009

You're forgetting something. I'm not ONLY interested in a single instance of malfeasance. I'm concerned about ALL wrongdoing. Which is why I don't CARE if Bush goes to jail for ordering torture, or defrauding the United States.

Whatever sends him to prison is fine.

Re: 18 USC 371.

Is there probable cause to believe that the defendants used deceit, craft, trickery, dishonest means -- including lies, false pretenses, misrepresentations, deliberate omissions, half-truths, false promises, and statements made with reckless indifference to their truth -- to obstruct, impede, or interfere with Congress' lawful government function of overseeing foreign affairs, relating to the invasion of Iraq?

That's the test. And I think there's AMPLE evidence to support the charge.

e.g.:

In his January 28, 2003 State of the Union address, BUSH announced that the "British have recently learned that Iraq was seeking significant quantities of uranium from Africa" which statement was fraudulent and misleading and made with reckless disregard for the truth, in that it falsely implied that the information was true, when the CIA had advised the administration more than once that the allegation was unsupported by available intelligence.
posted by mikelieman at 8:55 PM on May 15, 2009

I don't think anyone has explained why RICO doesn't apply here. A chain of command used to commission criminal acts is the definition of a criminal conspiracy, as far as I know, and Cheney sending down word that he wants things done is no different from Vito Genovese sending down word about what he wanted done. Not only did the paper trail not exist when Capone ordered the Valentines massacre, neither did RICO, it was invented specifically to allow charges to be brought against people who never got their hands dirty, personally. People who filtered their illegal orders through layer after layer of middle men, sometimes to the point where the soldier on the ground wasn't even aware that the order came from the Big Man. Men like Frank Tieri. Men like Dick Cheney.
posted by paisley henosis at 11:14 PM on May 15, 2009

As long as though immoral, country-destroying bastards who have brought America to her knees end up spending life in prison or dead, I'm happy.

America was taken by pirates.

You don't allow pirates to flourish or you risk your freedom and wealth.

RICO, treason, malingering, or the invention of a retroactive new law, whatever works. If there are no consequences, America must ultimately fail. The bad will have won.
posted by five fresh fish at 11:40 PM on May 15, 2009

They will create Lt. Calleys of all of the torturers. They will become the focal point, not the victims.

See, here's the thing.

The torturers AREN'T THE VICTIMS.

The people who were TORTURED are the victims.

Fuck the torturers. Fuck them in the ass in Federal Prison where they belong.

They don't wanna go to prison? Well, they should have thought of the before they CHOSE to violate their oaths and The Law.

At this point, they can turn States Evidence and hope for a plea bargain and protective custody.
posted by mikelieman at 6:36 AM on May 16, 2009 [1 favorite]

Argh, I see what happened there. You weren't implying that the torturers are being turned into victims. My bad.

But still, Fuck 'em.
posted by mikelieman at 6:38 AM on May 16, 2009

It seems illogical that killing can be acceptable but something less severe than killing can never be acceptable.

Last resort rape?
posted by phoque at 7:07 PM on May 19, 2009

As always, what goes around comes around: torture comes to America. Karma. Or howzit go, "Do unto others as you will have them do unto you"?

It will not be long before these tactics move up the food chain.
posted by five fresh fish at 7:45 PM on May 19, 2009

2. In the aftermath of the 9/11 attack, was [the US] justified in [torturing prisoners]?

A followup: Mark Danner, who's been following the torture story since 2004, argues that in order to resolve this question, it's necessary to evaluate what information was gained from torture.

It is because of the claim that torture protected the US that the many Americans who still nod their heads when they hear Dick Cheney's claims about the necessity for "tough, mean, dirty, nasty" tactics in the war on terror respond to its revelation not by instantly condemning it but instead by asking further questions. For example: Was it necessary? And: Did it work? To these questions the last president and vice-president, who "kept the country safe" for "seven-plus years," respond "yes," and "yes." And though as time passes the numbers of those insisting on asking those questions, and willing to accept those answers, no doubt falls, it remains significant, and would likely grow substantially after another successful attack.

,,, the chair of the Intelligence Committee, Senator Dianne Feinstein of California, and its ranking member, Senator Christopher Bond of Missouri, have announced their own investigation into "how the CIA created, operated, and maintained its detention and interrogation program" and—what is crucial—their intention to make "an evaluation of intelligence information gained through the use of enhanced and standard interrogation techniques."

That is the central, unanswered question: What was gained? We know already a good deal about what was lost. ... Torture has undermined the United States' reputation for respecting and following the law and thus has crippled its political influence. By torturing, the United States has wounded itself and helped its enemies in what is in the end an inherently political war—a war, that is, in which the critical target to be conquered is the allegiances and attitudes of young Muslims. ...

This is the only way we can begin to come to a true consensus about torture. By all accounts, it is likely that the intelligence harvest that can be attributed directly to the "alternative set of procedures" is meager. But whatever information might have been gained, it must be assessed and then judged against the great costs, legal, moral, political, incurred in producing it. Torture's harvest, whatever it may truly be, is very unlikely to have outweighed those costs.

... The issue [of torture] could not be more important, for it cuts to the basic question of who we are as Americans, and whether our laws and ideals truly guide us in our actions or serve, instead, as a kind of national decoration to be discarded in times of danger. The only way to confront the political power of the issue, and prevent the reappearance of the practice itself, is to take a hard look at the true "empirical evidence of the last five years, hard years," and speak out, clearly and credibly, about what that story really tells.

posted by russilwvong at 11:59 AM on May 22, 2009

"It seems illogical that killing can be acceptable but something less severe than killing can never be acceptable."

Excellent argument to get rid of the death penalty.
posted by markkraft at 10:59 PM on May 22, 2009

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