http://thinkprogress.org/2009/05/11/report-why-bushs-enhanced-interrogation-program-failed/
And this just in…
Futher documentation and evidence that enhanced savagery is of questionable value, if not utterly ineffective.
Contrast and compare with:
Perhaps he didn’t get the memo…
IANAL but from what I have read the “understanding” you mention regarding the CAT treaty was it did not apply domestically because we already have laws making torture illegal domestically.
Right. Because guess what, torture is already illegal within the United States as covered by the 8th Amendment’s prohibition against “cruel and unusual” punishment.
2340 extends our sense of torture being illegal to any US citizen wherever they may be.
Neat how this works. As noted above torture is illegal in the US as covered by the 8th Amendment. Torture is illegal outside the US as covered by 2340 (which adopts the CAT’s definition). Torture is illegal as a matter of war as covered by the Geneva Convention.
So, it is illegal. Period.
Yes the Bush administration has tried to wriggle some loophole but legal analysis has roundly criticized the attempt. Indeed, there is the possibility that the Obama justice department may advise disbarrment (or at least sanctions from the Bar) against the attorneys who wrote the legal justification for torture (I cited that somewhere around here before from a leaked government document…what will actually be done remains to be seen).
In short, their legal justifications are bullshit.
I think I have made it clear it is illegal both domestically and as a matter of international law not to mention it is a violation of the UCMJ.
Elsewhere we have quite thoroughly debunked the notion of torture as a useful means to retrieve information. Not just kinda-sorta debunked but conclusively, via numerous cites from expert sources, debunked into oblivion. There really remains no viable debate on that point around here (some few diehards will not concede the point but the mountain of evidence opposing them is staggering and they have nothing left but their “belief” it still somehow makes sense).
He had his own memos written.
<Colbert>
What we’re doing may be cruel, but it is no longer unusual for us to do it !
</Colbert>
First, when the US signs a treaty it applies in two different ways. One way on the international plane, and a different way domestically. We are a dualistic nation; Germany though, a monolistic nation, says all international law is German law.
With that out of the way, the understandings basically made the CAT apply to our domestic law and in compliance with the 8th amendment. So yes, CAT/2340 are one in the same as far as the definition of torture is concerned; this definition imposes a stricter requirements on what is torture, than the other signatories of the Treaty define it.
I have no disputes that torture (ala, Lethal Weapon I, Rambo II, Reservoir Dogs, whatever) is illegal. I’m not using the word “torture” anymore to apply to recent events.
Waterboarding, may not have been illegal according to our statutes and interpretation of the word “severe” coupled with a “specific intent” to inflict it. There is just no way that the waterboarders specifically knew they were inflicting severe pain after being told this procedure was done on US soldiers. So it is not for them, illegal, period.
The way prosecutions will result from this, if at all, will be (1) another country prosecutes (assuming Obama doesnt talk them out of it, which it appears he did with Spain); (2) We get the lawyers under oath and hope they somehow perjure themselves (Did you have sexual relations with KSM?); (3) The lawyers admit they did not take the law, define it, and conclude that when used under certain circumstances waterboarding fit just inside the legal realm, but instead they admit they were told to “make it fit” inside current banning torture.
That isn’t a very compelling argument. It was done to US soldiers to prepare them for capture and torture by our enemies. Why wouldn’t it be torture again? It doesn’t follow that “because we did it to our own soldiers it isn’t torture.” Specifically because it was *done *to familiarize our soldiers with torture.
First, I want to be clear. Waterboarding is an immoral act and should not be condoned. But, immoral acts don’t equal illegal acts. I’m just trying to show why I don’t think waterboarding was illegal (per US law and understandings to treaties) when committed.
The reason it’s not torture is this. If you’re a potential waterboarder and you’re trained in how to do this technique against terrorists, and you’re further told, “we use this technique in California on our own soldiers to prepare them against interrogation, ect.” That potentional waterboarder is probably thinking, “well, if we do it to ourselves, then this can’t be that severe.”
So, even if it is in fact inflicting “severe” pain, if the above waterboarder does not think it is, then he’s not doing anything illegal according to the CAT/2340. Further, “severe”, while undefined in the Statute/CAT, has been associated with “extreme pain” and/or “likely to result in organ failure or death”
When you say “It was done to US soldiers to prepare them for capture and torture by our enemies;” That’s true. But do you think, knowing it’s being done to our soldiers, believe it’s inflicting “severe” pain? If you do, that’s reasonable, but if you don’t, then you also do not have “specific intent.”
That’s why I don’t think waterboarding is illegal under US law.
They should just amend the damn statute to specifically include it.
Please see my cite in Post #217 which pretty roundly debunks this.
They knew it was severe. They knew it was torture. Specific intent is self evident.
Bush & Co. may have tried to redefine what constitutes “torture” and replace the word with euphemisms but torture it remained. Indeed the fact that the Bush legal eagles worked so assiduously to redefine torture and make it “legal” is evidence itself that they were all aware this amounted to torture.
Sorry, but that statement fails to parse in any sort of Earthian logic. How does the fact that something is done on someone else any indication of whether or not it is painful ?
Did the torturers fail to notice the people they were waterboarding were screaming and hysterically thrashing about all the way ? Did they have no intent to waterboard them and just did by utter accident and through a funny sequence of coincidences and misunderstandings ? Did they figure the interrogatees instantly cracked because they were suddenly blinded by the light of Freedom ? Arguing the torturers believed they weren’t doing anything wrong is not only disingenuous, it’s quite frankly insulting.
Even before other people told me it, I independently thought that right after 9/11, irony died.
But I was wrong. There was some smidgen of it left before the Insect Box incident.
If I were an untrained interrogator given a quick bout of SERE training, and told to inflict it on a captive, I *might *believe it not to be torture if I specifically didn’t think about it. If it’s not torture, why are we doing it? Why is it used in training to prepare for torture? Are we using it in the same manner we use it on our troops?
Assuming I decided not to think about it I would however realize it was torture the first time I saw a man spasm and go into utter, uncontrolled panic because I’m rousing the deep-seated reptilian part of his brain that really, really wants to breathe.
A stupid person could do it once perhaps and not know it’s torture. No one could do it twice and be so willfully blind.
Ignorance of the law isn’t an excuse. If you can’t rack the slide of your pistol and dry fire it pointing at the captive’s head, you shouldn’t be able to fool his animal mind that it’s dying from drowning.
Each of those interrogators needs to be busily transforming rocks into gravel and Leavenworth.
I’m not defending torture, nor waterboarding. I don’t condone and neither should the US. I feel like I’ve been backed into that corner, when all I’m trying to do is explain why I do not think these waterboarders violated US law.
I still don’t think they did. Let me explain it this way as multiple posters have responded. Q & A with a waterboarder…
Q: Did you think waterboarding was immoral? Yes.
Q: Did you think that waterboarding would inflict mental pain? Yes.
Q: Did you think that waterboarding would inflict physical pain? Yes.
Q: Does America think waterboarding inflicts mental and physical pain? Yes.
Q: Do most people currently think waterboarding inflicts “severe” mental and physical pain? Yes.
Q: Did you think waterboarding would lead to extreme pain or result in organ failure or death? No.
Q: Did you think waterboarding would lead to a prolonged time of extreme mental pain? No.
(not relevant, but) Q: Why did you think that? because we’ve performed this technique on thousands of US soldiers. I, personally, did not believe we’d inflict prolonged extreme mental pain or try to cause organ failure in our own troops. Maybe I was wrong.
Result: Not Guilty. (or not charged b/c they would already know this)
Everything that has come out about waterboarding has come out after the fact. It only matters what this person was thinking at the time he was waterboarding.
It only matters how these lawyers defined the law at the time they defined it. Asking a terrorist a question is not torture, electrocuting him until he answers is. They, using US law, drew a line between those two and said on one side it’s torture and illegal, on the other it’s legal. They did not say just because it’s legal it was moral. They did not say because it was legal you should do it. Those were policy decisions to do immoral acts that would tarnish America’s image across the world. And that’s what happened.
The best bet is to get these lawyers to admit they were told to make waterboarding “legal.” You could then try and pin conspiracy charges on the higher ups. Once you turn over the rock though, it’s likely going to be a lot more people than currently being blamed having knowledge waterboarding was being used.
The site you gave said nothing about saltwater, or vomiting:
More severe? Yes. Does that mean then, that the Gitmo waterboarding is all hunky-dory? No. :dubious:
(Note – please forgive the racial slurs. I quoted directly from the article)
First off you are using the Bush Administration redefinition of what constitutes “torture”. It is absolutely in question whether an administration can just redefine the law to whatever suits them.
Second, waterboarding can lead to organ failure or death. As noted above (which you failed to respond to) in post #217 he mentions a possibility of death by hypoxia. I’d have to dig it up again but I read somewhere that the shock of the procedure also carries a legitimate risk of heart attack from the shock of it all.
Third, as again noted by the SERE instructor I cited this is absolutely torture. Period. He is unambiguous about it.
Where is this a required definition of “torture”? How long is “prolonged” to you? And remember while we are on about waterboarding there was plenty of other stuff done to these guys that we would constitute torture. I cited an FBI eyewitness report of the people in these conditions. Conditions that led to the detainee’s near unconsciousness and tearing their own hair out.
You’re wrong.
Again: Post #217
First, and most importantly, how do you quote something, respond, then quote something again?
The “Bush definition” of torture is based on Supreme Court and legislative interpretations of “severe physical pain” “specific intent” “severe mental pain.” ect. I’m not saying it’s right, but the Statute leaves it open to interpretation; A court would determine whether it was right or wrong (it’s not a question whether specific intent applies though; only how to define “severe”). The legislature should now not leave it open to interpretation. Hopefully they’ll amend it.
Second, I’ve pretty much exhausted all I can say here. I can’t stress enough though how it doesn’t matter what you or I think, only what the waterboarder thinks. So, when you say “How long is prolonged, to you?” That’s exactly my point. I might think prolonged is 45mins, but if the waterboarder thinks it has to be extreme mental pain for a month, then that’s what it means. Can you see how hard it would be to successfully prosecute someone for this? Do you think this was unintentional?
Third, I did repsond to 217, although very passively as not to be noticed. Just because this SERE instructor said it “can” lead to organ failure, doesn’t mean a waterboarder believed it would. It doesn’t matter what someone comes out and says after the fact when everyone is talking about it and making their stand (and everyone is familiar with phrases like "severe organ failure). It only matters what someone knew when they waterboarded. Unless this SERE instructor told all this to the specific waterboarder, or each person subject to it was told “hey buddy, this might kill you, but what doesn’t kill you makes you stronger” it doesn’t matter. Or did the soldiers who underwent waterboarding think it was only an unpleasant and painful experience (but not extreme; a right of passage maybe). And like the SERE instructor said “SERE staff were required undergo the waterboard at its fullest. I was no exception. I have personally led, witnessed and supervised waterboarding of hundreds of people.” This just makes it seem all the more not “severe” or “extreme” even though we now know there is good reason to believe it is.
Do you see the middle button at the bottom of posts, the one that has the quotation marks and a “+” at the bottom? You can go through the posts in a thread and push that button for each one, then hit the “Quote” button when you’re done and the response box will come up with all of the quoted posts in it, each one separate.
If you’re responding point by point to a single long post, you can hit “Quote” and then add a </quote> (with square brackets for vBcode instead of the pointies of HTML) to the end of the section you want to respond to. Then when you’re done with your response to that section, add a <quote></quote> around the next section you want to respond to. Keep doing that for all the separate section you want to respond to and then just do an opening <quote> to the last section, because it’ll already have the </quote> from the original Big Block O’Quote.
Thanks.
It works…
Our legal system is a big fan of precedent. The US has, in the past, prosecuted people for precisely what we are doing now. The only difference being is to them (it would seem) it is torture when done to an American but not torture when an American does it to someone else.
Waterboarding has already been interpreted. Interpreted, legally, as torture.
For example:
I do not think the law is as vague as you would have it. Time and again waterboarding has been deemed torture. By our own government, by the Gestapo, by the Khmer Rouge, by our own SERE instructors. You are finding a gray area where none exists merely because some Justice Department weenie specifically set out to reinterpret the law. The laws do not need to be made more clear. The law needs to be cleared of bullshit revisionism.
Note the SERE instructor mentioned they have a doctor and psychologist on hand. Why would they pay those two to be present if there is no (or at the least minimal) risk to the person being waterboarded?
Also note the instructor is unambiguous in his assessment of waterboarding being torture. A professional assessment that far outstrips your gut feeling.
Have you ever seen a waterboarding as done by SERE instructors? The “victim” is apprised of what will happen, given metal rods in each hand to drop when they want to stop, told a safe-word to get it to stop. Do you suppose that is the same thing as being unwillingly waterboarded? Waterboarded after being left in stress positions, sleep deprivation and so on? Waterboarded when you realize that your torturers may continue to do it to you over and over again?
Let’s see what doctors have to say about its effects:
Unlike waterboarding or any other method of torture, it does indeed.
Quelle surprise.
I don’t have time to reply to your post, but I will later tonight. It’s very well-thought out and it will take me more time. I do want to point out that I’m only arguing whether what the waterboarders did was legal or illegal under the CAT/2340.
Having said that. The article you cited is…slanted to say the least, but, things such as "He [Bybee] cited scant history for the Convention Against Torture, which took effect in 1987…“However, you should be aware that there are no cases construing this statute, just as there have been no prosecutions brought under it,”
Importantly though, it cites a case in which someone was waterboarded and was prosecuted for it. Unfortunately, the article states, (1) “That law [CAT] was not in existence when the Texas sheriff, James Parker, and his deputies were prosecuted and sentenced in the 1980s.” It may or may not have included a specific intent requirement. That would be important.
You mentioned other times America has prosecuted for waterboarding? Can you tell me who/when? Just curious, I would like to find out if they also had the specific intent requirement.
One other quick thing.
My point is this is very grey line between torture and not. The fact the we are in fact waterboarding US soldiers today. That’s a fact, right?.
The differences are: a Doctor, shrink, ability to stop, and most importantly, the fact that the soldiers know who’s doing it to them (ie, the mental part is largely reduced). Without these “extras” this would be torture? Otherwise this SERE instructor should be prosecuted. NOw, we know waterboarding triggers the “drowning death reflex;” if that’s severe mental pain, then it’s severe no matter who’s doing it to whom.
So is the ability to not stop this the difference between torture and saying waterboarding is not torture?
Anyways, I think waterboarding is torture in the normal American version of the word. but not “torture” as defined in the CAT/2340, and no one will be prosecuted for violating those. Sorry.
I will be back to add more, though. I won’t though if you understand by what i mean when I say “specific intent” and how important that is to violating the CAT? The person has to have actual knowledge that what he was doing was causing severe mental/physical pain at the moment in time he was doing it; Not that he should have known it would cause this, not that some other country did it in the past, not that some guy in Texas was prosecuted for it in 1983 (and this leaves out the fact that you have to actually prove this with evidence, which there is no need to discuss here).