http://www.truthout.org/article/evan-wallach-waterboarding-used-be-a-crime
No.
Very weaselly article. The author makes very specific claims about the soldiers’ testimony, but fails to identify the Japanese soldiers convicted. And with good reason: so far as I can see, no soldier was ever convicted for these acts alone – that is, there was always other, more serious allegations involved.
And look at how carefully he dances:
Technically true. But misleading in the extreme, because he doesn;t say, simply and directly, that they were convicted directly forthat conduct.
“Including, but not limited to” followed by an ellipses. Once again, there was considerably more severe actions involved, and it’s far from clear that waterboarding alone would have sustained convictions.
If your cause requires deceit and misinformation to make your case, how solid is your case, really?
Citing this case as evidence that U.S. courts consider water-boarding to be torture is hardly “deceit” or “misinformation.” The case is In re Estate of Marcos Human Rights Litig., 910 F. Supp. 1460 (D. Hawaii 1995). The ellipsis doesn’t leave anything significant out, and the court refers to “all these forms of torture” after listing 14 standard human rights violations. (For the record, almost all of which we have used against Iraqi detainees, according to NCIS and CID, though most likely not by official policy).
Among the listed types of torture are beating, various kinds of unprovoked minor physical harm (e.g. ear-boxing the detainees), various kinds of humiliation, mock execution, water boarding, burning, sensory alterations (hot and cold), sexual assaults, electric shock, and solitary confinement in stress positions. That list bears striking resemblance to lists of what is considered torture under international human rights law. According to physicians groups and international human rights experts, waterboarding carries the kind of extreme physical and emotional consequences associated with these other techniques. See, e.g., Physicians for Human Rights, Leave No Marks: Enhanced Interrogation and the Risk of Criminality (2007) (warning: PDF).
You can assert the hypothetical that the court would have ignored the case if waterboarding had been the only form of torture used, but there’s no evidence for that assertion, and plenty of evidence the other way. The court clearly suggests, and this is entirely consistent with international law, that water boarding is torture.
That water boarding isn’t torture is the weakest of the administration’s arguments. The Committee of the Convention Against Torture has explicitly said it is, and the administration has resorted to making specious arguments about self-defense and emergency exceptions to CAT, which are specifically disavowed by the text of those treaties. Indeed, U.S. agencies have routinely referred to other countries’ use of these techniques, including waterboarding, as torture. See, e.g. U.S State Dep’t, Human Rights Reports for 1999: Tunisia("The forms of torture included electric shock, submersion of the head in water, beatings with hands, sticks, and police batons, cigarette burns, and food and sleep deprivation.).
The only colorable legal arguments on this issue are about the scope and exceptions of the various U.S. anti-torture statutes, not the substance of what they or international law covers.
Perhaps you’re right to expect CIA torturers to be very well versed in US case law on torturing. I dunno. All I know is I’m a grunt in the military, and I’m expected to follow all lawful orders. Quite frequently when decisions come down to legal matters that we’re not familiar with, my office will get guidance from General Counsel. In those cases, I may be presented with an order to do something along with a statement in advance that the request is a lawful order. It’s reassuring, because it feels like knowing the outcome of any legal objections in advance.
Now, the worst I can do in my job is violate some ethics laws in regards to contracts. But I can imagine if I were a torturer, and someone tells me to waterboard someone, and they also have documentation from the DoJ saying that it’s legal for me to waterboard people. I can refuse the order, but I’ll almost certainly lose my dereliction of duty and failure to obey court martial, since the decision of whether or not that order was lawful has basically already been made. I’d have to be a pretty smart cookie to know enough case law to be able to confidently say that the DoJ is wrong.
Of course, the CIA isn’t the military and maybe the torturer should just walk. But in the grand scheme of things, being surrounded by abuse and grief and whatnot, crossing a line into torture that people are telling you isn’t torture probably doesn’t seem like a huge deal versus going to jail for violating the UCMJ or even just losing your career and getting sent home in shame for not wanting to protect America, or whatever propaganda your higher ups might be guilting you with. That’s all I’m saying, I’m sympathetic to the guy who actually has to execute the shitty orders given to him. And you, apparently, are a hardass.
This can go back to what Bricker was saying earlier. Maybe you can expect high ranking CIA, DoD, and executive branch officials to be well versed in US case law on torture. But I’d suspect that they’d probably trust their lawyers to be the ones knowledgeable in case law. So if your attorney general and the DoJ is telling you that your orders are lawful, what are you gonna do? How are you gonna convict anyone here? You’d have to start with the DoJ, and then they’re just gonna say “Oh, THAT’S what they were doing? Well, we didn’t sign off on that.” And then everyone goes home.
I’d like to see someone convicted over this, but I’m not sure where this investigation, if it happens, will lead. I’m guessing there’s a lot of small failures on the parts of everyone from the torturer to the grunt lawyer at the DoJ who failed to do his homework and understand the problem, and I doubt it was anyone being overtly evil. All those small failures have added up to a huge national black eye. I’d be satisfied if we just remember this forever and fix things now, so that it doesn’t happen again.
If torture isn’t “overtly evil”, what is ?
If this holds true–if there are no charges for torture–then it means that folks have found a way to get around the law, to commit illegal acts without paying the consequence for them. (This stipulates that torture is illegal). That is not a good thing.
Perhaps they can’t be charged here. Do we have an extradition treaty with Iraq? There’d be a certain poetic justice in extraordinary rendition.
Daniel
Steronz, you honestly think the detainees at Gitmo weren’t tortured, absent a little waterboarding, which the interrogators were given to believe was not torture?
Thing is, the focus on waterboarding is a bit of a red herring. The torture defenders like to talk about waterboarding because it’s a form of torture that, unless you understand what it really is, doesn’t shock the conscience of the public.
But waterboarding is only one of the torture techniques used by American interrogators at Gitmo.
And you’re damn right I expect CIA interogators to understand US case law about torture. Fuck yes, I expect them to understand that they aren’t legally allowed to torture detainees. Just like I expect cops to understand US case law about legal searches and seizures, or when they are legally allowed to use deadly force. If a cops don’t understand when they are legally allowed to search a car or detain a suspect then they are going to routinely make mistakes that allow criminals to walk free.
And this is exactly what has happened in these Gitmo cases. All the supposed evidence that these guys were hardcore terrorists is being thrown out and it looks like NONE of these guys will ever be convicted of a crime. Which means they’ll either have to be released somewhere and if their home country won’t take them I guess that means released in the US. Either that or we’ll extralegally detain these people forever even though they haven’t been convicted of any crime or declared prisoners of war.
You’re missing the point. Torture is evil, and I don’t think these CIA interrogators thought they were evil, therefore they probably thought that what they were doing wasn’t torture. Hindsight and our distance from the events allow us to view things much more clearly than they would have been able to.
Lemur866 - I honestly think that there was all kinds of torture going on at Gitmo, not just waterboarding. I feel like I’m in a position of defending horrific behavior just because I don’t think interrogators are bad people who should go to jail. I think that the interrogators were led to believe that what they were doing wasn’t torture. And I can understand how a slippery slope of acceptable interrogation practices, combined with a DoJ blessing, could convince an otherwise good person to slide their scale of right and wrong enough that they felt justified in what they were doing.
The point is not simply whether or not you can define it away. The point is that we are now a different people. We do things that other countries do. America was supposed to be different. If we did it in the past we did not proclaim it. Bush and Cheney seem proud of it. They have fundamentally changed who we are, to ourselves and the rest of the world. It is not a change for the better.
And I had to come back to comment on the cops/searches issue. I expect cops to know enough about search/seizure law to know when they can do a field search. I don’t expect them to know enough about case precedent to know when a warrant is invalid. If a cop suspects criminal activity but doesn’t know if there’s enough probable cause for a search, and he goes to his superior, who goes to the DA, who gets a judge to sign a warrant, which compels the cop to perform his search, and then that warrant is later thrown out by an appeals court after trial because it ends up there wasn’t enough probable cause after all, are you honestly gonna fault the cop? Would you expect him to KNOW that the warrant was invalid and sacrifice his career by refusing to carry it out? Even if the cop was an amateur lawyer who liked reading cases for fun, I suspect that even he would defer to the judgment of the professionals.
Clearly you’d be mad at someone in that case… 4th amendment rights were violated, and that’s not in dispute. But who do you get mad at? The cop was doing his job, the police chief was doing his, the DA was doing his, and the judge made a call that ended up being wrong. But if you tried to prosecute the judge, I imagine he’d say that the DA didn’t present the evidence very well. The DA would say that he did the best he could given the information from the Chief, the Chief would say that he’s just a dumb cop and he told the DA everything he knew from the Cop, and the Cop would say that he was 100% honest and forthcoming with the chief. So many fingers to point. If you held an investigation, you’d hope for one of a few things:
- Evidence that the Cop knowingly lied about his suspicions or any evidence that criminal activity was taking place.
- Evidence that the Chief took the Cop’s honest information and intentionally skewed it.
- Evidence that the DA took the Chief’s honest information and intentionally skewed it.
- Evidence that the Judge knowingly ignored precedent when he issued the warrant.
All of those things are going to be very hard to prove, so we have a situation where we know a crime was committed and rights were violated, and we want to do an investigation to see if we can nail it on someone, but we all know the likely outcome is nothing.
If that doesn’t mirror this torture situation, I don’t know what does. I hope Obama orders this investigation, but I suspect nothing will come of it, especially since Obama seems very adept at viewing issues from everyone’s individual point of view. I don’t think he’s likely to condemn the interrogators any more than I am.
on edit: gonzomax - Exactly. At this point, the best we can probably do is to make sure it doesn’t happen again and to let time wash away our sins.
I don’t think this is a compelling analogy. There are some illegal actions for which you should not be expected to know they are illegal. In the case of warrants, an officer might not know that, say, searching the trunk of the car of the person they’ve just arrested is not a justified search incident to arrest. Or some similar legal distinction. But there are other illegal actions that are obviously bad on their face. You don’t have to read the statute books to determine that murder is wrong.
The question is what category these forms of torture fall into. If you knew torture was wrong, could you waterboard someone without thinking it was torture? How about mock executions, could you do that? There’s an argument to be had there. But I think it turns on subjects not yet discussed in this thread.
Oh, garbage. This isn’t a subtle evil. And of course they didn’t think they were evil; that doesn’t mean that they weren’t.
Letting everyone involved in this get off the hook because the Administration’s lawyers said it was OK is like excusing everything Nixon’s team did on the grounds that he and they sincerely believed that “When the president does it, it is not illegal.” Like that, only worse. The Committee to Re-Elect the President never physically tortured anybody.
So, since it’s such a slam dunk case I’m curious why exactly most people in this thread are already thinking that Bush et al are going to get away with it. I mean…we have a Congress and Senate controlled by the Democrats and a shiny new Democratic President, no? They are going to control 2/3rds of the freaking government for gawd sake! And yet, it seems confidence is not high that anything meaningful will come out of the supposed witch hunts that the left has been drooling for for years.
As I said, I’m curious here…why is that? Is Bush and his merry men REALLY that much more powerful than the Dems…so powerful that they can continue to influence things after they are not only gone but after the Republicans have lost control in 2/3rds of the government?!? :eek:
I’ve sort of been here for a while but I’ll just re-iterate my feelings in one sentence to the left wing and the Dems on this fascinating issue…SHOW ME THE MONEY! The Dems have control of things now…so, let’s see some results on this or let’s stop hearing the constant yammering. I’m sick of hearing about all this smoke…let’s see some fire. If Bush et al are guilty of illegal acts then I expect to see some prosecutions…or I expect to see Bush sign a whole bunch of pardons in advance (which I will accept as admitting guilt).
So…show…me…the…money.
-XT
How often have I compared the Dems in Congress to a bunch of rabbits who jump at the sight of their own shadows?
Not often enough, apparently.
Because the Left doesn’t think there will be serious investigations, much less witch hunts. The Democrats are cowards; we could have a 100% Democrat government, and they’d be too terrified of name calling by the out of power Republicans to do anything. And Bush is probably going to pre-emptively pardon everyone including himself, anyway.
We won’t see any “fire” because we won’t see any serious investigations.
I think you misunderestimate this administration’s abilities to cover their own ass. From telecom immunity, to the destruction of the interrogation tapes, this administration has always put avoiding prosecution at the forefront of their activities. As I said earlier, this “but they told us we could torture”/“we only meant enhanced interrogation not torture” game they’re playing is just another example of it. We saw how quickly the wagon’s got circled and how little the Democrats did when this administration leaked classified information, and how the Dem’s capitulated on the telecom industry. They’re not going to do shit.