I interpreted it that way because that’s the way others (Supreme Court) have interpreted specific intent. I cited Black’s Law dictionary with the definition. You’ll have to trust me it’s an element of 2340 or get others opinions and see if they confirm it.
So, “specifically intending to cause severe mental/physical pain suffering” is intending to violate 2340. It doesn’t say violate 2340 because it’s one in the same. This goes back to not thinking you’re violating 2340/specifically intending to cause severe mental pain/suffering.
Example. If murder was a specific intent crime, and I shot you, but only intended to cause you some mental and physical pain, and you died, I would not be guilty of murder even if I reasonably knew you might die as a result.
So, replace shot with waterboard / die with torture / murder with 2340.
What? It doesn’t physically harm you, so apparently by your definition it wouldn’t be torture.
Still seems to me that the only problem is that this nigh-universally-accepted definition of torture is at cross-purposes with your personal version.
Yes I can, since this is the world standard for torture, versus the Fotheringay-Phipps Made-Up Personal Definition of Torture. See the difference? If you wanted to convince me that “attorney” meant “a small purple flower” and I hauled out the OED to confront you, you wouldn’t be able to argue against that with “well it’s what I want it to mean,” either.
Uh, no, I don’t agree with that at all. Every culture on the planet that comes to mind has a taboo against feces (with good reason). How you can possibly think that being smeared with it is comparable to being lawfully arrested is beyond me.
This would imply the Executive. And the answer is Yes. Now we just need to get Tom Cruise to get Cheney on the stand and get him to say “YOU’RE GOD DAMNED RIGHT I ORDERED WATERBOARDING!!” Actually, he pretty much said this the other morning (not under oath, of course).
Of course waterboarding has to violate the CAT/2340. Cheney would say the lawyers told me waterboarding didn’t violate the 2340 so when I ordered it, I didn’t specifically intend to cause severe mental/physical…
The lawyers would say we were asked to draw a legal line in the sand. We did. If it’s wrong, it’s not that wrong.
You have to get them on conspiracy. You have to get them to say/find a document/ect that says “make waterboarding legal” and that’s why they wrote the opinion. If you read the opinion, they are extremely clear to resolve themselves of this and state clearly they were asked to write it and it applies to only high level targes (ie, KSM). Of course, waterboarding still has to be illegal. Which goes toward the “severe” part.
Or get Spain (another country where i’ts not as hard) to do it. (Actually, Spain would have to do it over our objections; or rather, they won’t do it b/c we told them not too)
I’ve not claimed that nothing that doesn’t involve physical harm can be torture. Only that humiliation isn’t. Psychological torture is also torture. I would include rape in that category, in cases where it doesn’t involve physical harm.
I don’t see where you’ve added anything here, so my prior comments stand.
OK, we’ll have to leave it there. I bet most people would pick the same option as me (stripped of the context of this torture debate), but you never know.
The big deal on torture is it debases both the prisoner and the torturer. When I was growing up, America was telling everyone that we were more civilized and more respectful of people and their god given rights. No man could take those rights away. We were different. We would treat people better.
Now we are torturers. We can say nothing about the so called less evolved countries that mistreat their population. There is no shining light. We are just another country that tortures. But worse , we always claimed we were better than that. So we are also liars.I am ashamed of what we have done.
The legal analysis there is as I have read it. The law explicitly states that “specifically intended” refers to causing suffering and not to intending to violate 2340. They are not the same thing.
It was noted in the answers to my question that an accused could attempt an “estoppel by reliance” defense which I take to mean the accused can make the case that they acted in good faith relying upon an expert legal opinion so are not guilty even though they did violate 2340.
Indeed I would expect such a defense. Whether it would work or not I do not know. Certainly the Nuremberg Principles explicitly deny such a defense when the crimes are in the realm of crimes against humanity (which I think torture is one). That said I do not think Nuremberg has the force of law in the US but willing to bet it is a principle and precedent that could be pointed to.
Personally I am two minds about prosecuting the actual torturers. On the one hand I can appreciate they were doing their job in good faith, on the other there are supposed to be limits to our behavior which supersede “my boss told me to do it.” I am far more interested in going after the administration pukes who got all this rolling.
It is not lost on me that there is a distinct political element to all of this as well. I could see a court reasonably going either way on prosecuting these people.
Bottom line though is this is the reason we have courts. They are supposed to decide things like this. I think (noting again IANAL) there is more than sufficient evidence for a prosecutor to bring charges. After that let both sides make their arguments and let the chips fall where they may.
My analysis is not wrong (I just dont think I’m good at explaining it). This is very complicated. I read the GQ link and they are right, and I think they are saying the same thing I am. I’m going to walk thru it step by step (mostly to explain it to myself)
“Generally, it would mean the perpetrator had intended to inflict severe mental or physical pain or suffering, as that is defined in the statute” That’s a quote from GQ, and it’s the same thing I said earlier. Specifically intending to violate 2340 means “specifically intending to cause severe mental pain and suffering.”
Good?
Now, maybe this is the holdup. Can these waterboarders violate 2340 by waterboarding? Yes. If they specifically intended to cause severe mental/physical pain by waterboarding.
I don’t think they specifically intended to cause “severe” pain because lawyers, on the advice of SERE’s and others, told them that waterboarding did not cause “severe” mental/physical pain. It hurts like hell, but it’s not severe.
So…being told waterboarding is not “severe”, a required element to violating 2340, how you can he specifically intend to do that?
ISTM that you guys are talking past each other. CoolHandCox it might be helpful if you confirm that you agree (as I believe you do) that someone who intended to cause severe mental pain and suffering but had never heard of 2340 is nonetheless in violation of that code.
So how is smearing someone with feces not psychological torture? You’re running in circles here. And forced masturbation is not the same thing as rape.
To break it down in smaller words: why are *you *a more authoritative source of a definition of torture than the United Nations?
Stripped of the context of this torture debate. Stripped of the context of this torture debate. STRIPPED OF THE CONTEXT OF THIS TORTURE DEBATE.
Who can tell me what was wrong with what **Fotheringay **just said? (Hint: it begins with “stripped of the context” and ends with “of this torture debate.”)
I think someone who has both of their hands amputated at the wrist without anesthetic will suffer a lot more than someone who only has a finger chopped off. By your argument, this would mean that having your finger chopped off can’t be considered torture. Do you disagree? :rolleyes:
I agree. Ignorance of the law is not an exception.
My focus is on specifically intending to cause “severe”
Specific intent is subjective so in the vacuum of the waterboarder, if he doesnt believe it’s not severe, then it’s not a violation of 2340 whether he knows about that law or not.
I’ve listed reasons why he would believe it’s not severe. These all pre-date when the actual waterboarding took place.
If you want to argue whether it’s not severe (to violate 2340), then you kind of have to show people thought it was severe before this took place and these lawyers/waterboarders knew it. Not after the fact when the camera’s rolling.
The article linked by whack-a-mole attempts to do this…see - Sheriff arrested in 1983 (that was the only one who was prosecuted for waterboarding alone, but it was not under the CAT; whereas the Japanese person was prosecuted for clubbing, kicking, burning…and waterboarding).
but you can’t really use - SERE’s instructor opinion after this has come to light and he’s separating himself from “torture.” SERE’s hand is all over this thing and it was their techniques that were followed.
IMO being humiliated in that matter is not harsh enough to count as torture.
True, but it probably has some of the same connotations.
I’m not the guy who brought up forced masturbation and I’m not making any claims as to whether it’s torture or not. All I’ve said, in response to someone else who brought it up, is that if it is torture it would not follow from this that feces smearing is also torture.
I said earlier that I don’t consider myself a “more authoritative source” on this matter. What level of suffering/discomfort is enough to qualify as torture is a subjective matter, and everyone gets an opinion.
I’ve addressed the UN repeatedly. If you don’t get it, you don’t get it. If someone else has difficulty with it I’ll explain it.
What I meant here is that it’s apparent from these threads that many people who vehemently oppose torture are therefore unable to consider that any possible argument that opposes torture might be lacking, and they feel compelled to convince themselves that every single argument that opposes torture is correct.
So if you stopped people as part of a random survey and asked whether they’d be more humiliated being perp-walked in front of friends/family/coworkers or being smeared with feces in front of some prison guards, I think most people would say the former. If you asked the question in the context of a debate over whether the latter is “torture” many of these people would give a different answer.
You are not following the discussion.
Kobal asked why X is torture and Y is not. I responded that X is worse than Y. That’s a logical response to Kobal’s specific question.
That does not imply that anything that has something worse than it can’t be torture.
It’s your last line there that I see as the real problem with this argument–I don’t see how anyone who participated in a single waterboarding could not immediately say, “this is torture.” Plausible deniability going in as to whether or not the suffering is “severe,” but not as soon as you see it happen.
Fotheringay, you’re not actually engaging in dialogue with anyone, so I’ve decided to spare my heart rate the frustration of attempting to argue with a brick wall. Consider any further posts from you ignored.
I think you could apply a “reasonable person” test to whether they thought it was “severe” or not.
Maybe (big maybe) you could argue that the first time someone does it they do not know it is severe. They were told it was ok and not a problem. However, after doing it once (or at least a few times) it has to become obvious to them that what they are doing constitutes inflicting “severe” mental anguish. I have cited abundant evidence for this above. It is inescapable and any “reasonable person” would have to come to that conclusion. Also, it is certainly intentional…no way to “accidentally” waterboard someone.
I’d argue they had to know it beforehand as well. They are professionals, they were trained in the technique, they had never used the technique prior to this (if it was such a good and non-severe technique for gaining evidence why hadn’t they been doing it since Day #1 of the CIA or FBI in interrogations?), they have to wonder (if it is all fine) why a doctor and psychologist need to be on hand “just in case”.
These are not children. Because some DOJ attorney tells them it is all peachy they do not loose their cognitive powers or powers of judgment.
The SERE instructors developed their methods for use in the SERE program. The government hired two psychologists with NO interrogation experience to reverse engineer the SERE methods for use against the detainees. SERE’s fingerprints are not on this as much as you might think.
Indeed this is partly the reason Nance (Master SERE Instructor) is writing what he is now. The guy is no squeamish sort. He is appalled at how the SERE methods are being twisted to “interrogate” people using torture that has been redefined as “not torture”. He is pointing out that he has gobs of experience with this and it is torture and he finds the current practice a blight on American honor and is not justifiable. He cares because he has spent a lifetime defending the country.
As for the Japanese guy yes there were other offenses. So what? If you are prosecuted for theft and murder should we somehow be able to say, “well, murder was only a part of it” such that the included offense of theft mitigates the murder part? Nope. Japanese guy was convicted of all of it and you cannot separate out waterboarding as not really a part of it because he did other bad things.
As long as you can appreciate that what you’re saying is subjective (you’re opinion). Then we’re on the same page.
What’s severe? The lawyers opinions cite definitions. These cites existed whether the lawyers used them or not. Some of those associate “severe” with “extreme”, “leads to organ failure”, ect. SERE’s instructed the lawyers that waterboarding did not cause severe pain/suffering.
SERE’s is not cutting their trainees fingers off even though that might happen if they are captured to make them talk. Why? It’s severe. Even Rambo couldn’t deny this (plausible deniability).
But saying waterboarding terrorists is severe, but waterboarding SERE’s trainees is not because they can stop it if they choose (even though you are in fact specifically intending to trigger the drowning/death reflex) is too fine a line for me to presume it’s severe and you can’t plausibly deny it.
This is exactly what “specific intent” is not. It’s purely subjective.
From previous post “What this doesn’t mean is, if the defendant waterboarded knowing that severe mental or physical pain and suffering was reasonably likely to result from his actions” (ie, general intent - Black’s Law).
So, without an opinion, we don’t know whether this guy would have been prosecuted solely for waterboarding. I’m pretty sure burning and clubbing were at the top of the list.
They do not cut off trainee’s fingers because it would be maiming and permanently handicapping the trainees. That does not behoove the purpose of training and wanting useful soldiers to come out of the program.
Waterboarding is more insidious as displayed by your statement here. Because it doesn’t leave a mark it is somehow not “severe”. That despite my providing you with scads of evidence showing you it is “severe”.
What about holding my own hand over a flame, versus having it held there? That’s your same “fine line” of distinction. I think that the ability to stop at any time is not a fine line at all, but rather one of the biggest things that defines torture.
Another example would be consensual BDSM–as long as any party involved can stop at any time, it’s not remotely the same thing as rape, even though the only difference is that consent.