Why the big deal over torture?

[Whack-a-Mole]

@CoolHandCox

I don’t think they do. I’m not sure if they thought they did or not. Their job was to define what “severe” was. They used SERE advice to determine what level of pain waterboarding rose too. They concluded that it did not rise to previous interpretations of severe.

“They concluded” is important here. Every cite I have given you from people who have been waterboarded and/or engaged in waterboarding are unanimous in their opinion that waterboarding = torture. Historically it has been considered torture going back hundreds of years. The US has cited it as torture in the past. So how did the lawyers arrive at this conclusion?

Note that one of the main points in, at the least, having these attorneys brought before their state Bar Associations for possible sanctions is that they neglected to cite relevant precedent from previous court cases dealing with this subject. You may argue those precedents are substantively different (a whole new debate in itself) but it is still incumbent upon those attorneys to have cited them and argue why they are not relevant.

They did not do that. They avoided the subject and rather than say why waterboarding is not torture they raised the bar overall on what is torture (legally). They moved it to an absurd level. A level that has been discredited completely and since reversed. A level that is having prosecutors give them a serious look as criminals and at the least may get them sanctioned/disbarred for their opinions because they were so egregiously wrong.

In short, they had a preconceived goal and pulled their professional legal analysis out of their collective asses to match that goal. They redefined the law to suit their purpose when there was no basis for it in reality.

They were not re-defining anything. They were “defining” it. No one has ever been prosecuted under the CAT (the link to that article you provided confirms this.) Hence the need to apply outside interpretations of how severe was applied in other criminal cases regarding the level of pain that must be inflicted.

They were redefining it. See just above.

Not only three, but more importantly, high value. Focus on high value. This gets to something I have not yet talked about here because it may not be relevant under this topic (and I’m just one man!). But to answer, the President has been given inherent constitutional powers to act in a “necessity” or “emergency.” How far this can extend, and whether 9/11 rose to that level, is extremely debatable.

“High value” is meaningless. Torture, as a crime, makes no distinction for how important a given prisoner may be.

Because planes only attacked NY, Washington, and the one we overtook on 9/11/01. These methods were derived in a direct response to those attacks, having captured high value targets, and having those targets not giving up information. The DOJ was then asked what would be legal to get them to talk.

See this recent thread: Torture is Most Likely Effective

In it we thoroughly debunk the notion that torture is useful as a means of getting someone to provide useful information. More, this is not something we just came up with here but is well known to professional interrogators. In fact, the FBI left Guantanamo because once the CIA started “enhanced interrogation” techniques their sources were ruined as possible information sources (FBI was more than a little pissed about that).

This is not some read between the lines thing or kinda/sorta thing. It is proven and well known among those who make a career out of getting people to provide useful information.

So again, who was the DoJ to decide differently? How did they make this determination?

In a very, very real sense they made this country LESS safe because of their actions (not being rhetorical on that…we really are less safe for it).

[CoolHandCox]

@Whack-a-Mole

So again, who was the DoJ to decide differently? How did they make this determination?.

Here is some definitions of “Severe” It’s pulled straight from one of the memos. I removed the lawyer’s interpretation of what the below means, and just left the definitions; The CAT “understandings” is particularly alarming to me.

**Dictionary Definition. **
(“extremely violent or grievous: severe pain”) (emphasis in original); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992)

(“Of pain, suffering, loss, or the like: “Grievous, extreme” and “of circumstances … hard to sustain or endure”). IX The Oxford English Dictionary 572 (1978)

Congress’s use of the phrase “severe pain” elsewhere in the United States Code
These statutes define an emergency condition as one “manifesting itself by acute symptoms of sufficient security (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in — placing the health of the individual … (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.” Id. § 1395w-22(d)(3)(B) (emphasis added).
**
Senate’s Understanding regarding the CAT**
[The Senate] included the following understanding:
The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.

Here are the Lawyer’s Memo’s released by Obama (In case you haven’t already read them)

Here is a CRS report on the Convention Against Torture; (CRS is research reports provided to Congress members, they are known to be very unbiased)

I really do suggest reading the CRS report on the CAT. It’s not a “legal” read, but does provide cites for all it’s assertions.

Note that one of the main points in, at the least, having these attorneys brought before their state Bar Associations for possible sanctions is that they neglected to cite relevant precedent from previous court cases dealing with this subject

The only thing that would be relevant would be the 1983 case. I’m still trying to find out the case name (do you know it?); None of it would be binding precedent. While a lawyer should be as exhuastive as possible, you don’t have to include or cite to everything that was written about the subject. Read the memo’s and tell me if you think they did a poor job of covering the subject? They are keenly aware that waterboarding can rise to torture, but felt assured that if done (I hate to say it) “correctly” that it would not quite rise to that level.

Again, they drew a legal line. It’s policy makers who decide to implement something that is immoral.

[Lemur866]

So if your lawyer tells you that bank robbery is not illegal, that means you can’t be prosecuted for robbing banks?

[Guinastasia]

@Lemur866

So if your lawyer tells you that bank robbery is not illegal, that means you can’t be prosecuted for robbing banks?

“Ignorance of the law is no excuse.” (Of course, I suspect that will sail right over their heads.)

[CoolHandCox]

@Lemur866

So if your lawyer tells you that bank robbery is not illegal, that means you can’t be prosecuted for robbing banks?

No.

Remember, the “lawyers” here weren’t “I’m Jim Adler, The Texas Hammer!, Been injured on the job? I’ll fight for your lost wages!”

The lawyers were the Justice Department for the United States of America. If they say something isn’t quite torture, and this law has never been defined before nor anyone convicted under it, we’re moving more towards good faith reliance on their opinions.

[Whack-a-Mole]

@CoolHandCox

Congress’s use of the phrase “severe pain” elsewhere in the United States Code
These statutes define an emergency condition as one “manifesting itself by acute symptoms of sufficient security (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in — placing the health of the individual … (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.” Id. § 1395w-22(d)(3)(B) (emphasis added).
**

How is this one relevant? (wondering if I am missing something…probably obvious knowing me)

The only thing that would be relevant would be the 1983 case. I’m still trying to find out the case name (do you know it?); None of it would be binding precedent. While a lawyer should be as exhuastive as possible, you don’t have to include or cite to everything that was written about the subject. Read the memo’s and tell me if you think they did a poor job of covering the subject? They are keenly aware that waterboarding can rise to torture, but felt assured that if done (I hate to say it) “correctly” that it would not quite rise to that level.

Again, they drew a legal line. It’s policy makers who decide to implement something that is immoral.

Seems the government does not agree with you on this:

WASHINGTON — An internal Justice Department inquiry has concluded that Bush administration lawyers committed serious lapses of judgment in writing secret memorandums authorizing brutal interrogations but that they should not be prosecuted, according to government officials briefed on its findings.

The report by the Office of Professional Responsibility, an internal ethics unit within the Justice Department, is also likely to ask state bar associations to consider possible disciplinary action, which could include reprimands or even disbarment, for some of the lawyers involved in writing the legal opinions, the officials said.

The conclusions of the 220-page draft report are not final and have not yet been approved by Attorney General Eric H. Holder Jr. The officials said that it is possible that the final report might be subject to further revision but that they did not expect major alterations in its main findings or recommendations.

<snip>

Several legal scholars have remarked that in approving waterboarding, the near-drowning method Mr. Obama and his aides have described as torture, the Justice Department lawyers did not cite cases in which the United States government previously prosecuted American law enforcement officials and Japanese World War II interrogators for using the procedure.

SOURCE: http://www.nytimes.com/2009/05/06/us/politics/06inquire.html

[CoolHandCox]

@Whack-a-Mole

How is this one relevant? (wondering if I am missing something…probably obvious knowing me)

“Acute symptoms of sufficient security (including severe pain)” it then goes on to define it what those acute symptoms would entail.

I don’t think this is that great, though. I still think the CAT is particularly damning in light of the CRS reports account of how it actually applies internationally. To me, there’s a huge gap.

Seems the government does not agree with you on this:

seems like they do: “but that they should not be prosecuted,”

I’ve only been arguing what they did was legal or not.

As far as the State Bar, they are outside the criminal law (they are outside everything really, ha). But, a “reprimand” is not going to make anyone happy. The State Bar can though, use a “moral” standard to discipline, which is what a lot of people want to see happen.

[CoolHandCox]

@Whack-a-Mole

“They concluded” is important here. Every cite I have given you from people who have been waterboarded and/or engaged in waterboarding are unanimous in their opinion that waterboarding = torture. Historically it has been considered torture going back hundreds of years. The US has cited it as torture in the past. So how did the lawyers arrive at this conclusion?

Note that one of the main points in, at the least, having these attorneys brought before their state Bar Associations for possible sanctions is that they neglected to cite relevant precedent from previous court cases dealing with this subject. You may argue those precedents are substantively different (a whole new debate in itself) but it is still incumbent upon those attorneys to have cited them and argue why they are not relevant.

I don’t like to double post, but I found the 1983 Sheriff/water torture case referred to in a previous article you posted. You can read it here. United States v. Lee

Here is the law they were prosecuted under: Violation Of An Individual’s Civil Right:
Is committed when any person by force, or threat of force, willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with, or oppresses or threatens another person in the free exercise or enjoyment of any right or privilege secured to him or her by the…or by the Constitution or the laws of the United States because of such other person’s race, color, religion, ancestry, national origin, political affiliation or sex. [this is West Virginia law, but I’m guessing it’s pretty uniform across the States]

The 5th Circuit Appellate opinion only decided whether the defendants should have had separate trials (a technicality thing; it’s not worth reading). It does not go into detail about water torture, but, they apparently assume it violates an individual’s civil rights.

While the CAT/2340 were created after this case was decided and unequivocally “raised the bar” as far as what constituted torture, in my opinion, this should definitely have been cited in the memo’s and is extremely relevant.

This case does not mean that “water torture” (undefined in the case, we can assume waterboarding) is binding and it’s use violates the CAT/2340.

[Whack-a-Mole]

@CoolHandCox

“Acute symptoms of sufficient security (including severe pain)” it then goes on to define it what those acute symptoms would entail.

Still not seeing how this applies at all.

An “emergency condition” is not the same as torture. They also are not defining severe pain but saying severe pain can be an indicator of an emergency condition.

seems like they do: “but that they should not be prosecuted,”

I’ve only been arguing what they did was legal or not.

As far as the State Bar, they are outside the criminal law (they are outside everything really, ha). But, a “reprimand” is not going to make anyone happy. The State Bar can though, use a “moral” standard to discipline, which is what a lot of people want to see happen.

All the analysis I have read suggests that to prosecute the lawyers criminally for their memo would be to show they intentionally meant to mislead everyone. Pretty much an impossible task in practice for something like this. The only other way to get them would be for war crimes. Those charges certainly could be brought but as a political matter almost certainly won’t. Particularly since if you went after the lawyers then you almost have to also go for those higher up the food chain meaning Cheney and Bush. Super-unlikely to happen.

So, we are left with sanctions from the Bar.

Anyway, the main thrust of my argument is that their interpretation of CAT/2340 is unquestionably bad and was in error as a matter of law. Indeed that is the point of the Bar sanctions being sought. Not that they did anything illegal but that the legal opinion was so egregiously poor as to (possibly) merit stripping them of their ability to practice law ever again.

Given that these guys were pretty smart guys to have achieved the positions they were in I find it hard to believe they were just dumb and were negligent writing it. It simply had to be an intentional effort. Alas proving that in court is another thing so they get off lightly in my view if they only get disbarred.

I have already stipulated that the actual torturers likely have a real defense that they relied on the bogus interpretation. Whether that is enough to save them is for a court to decide.

[CoolHandCox]

@Whack-a-Mole

Still not seeing how this applies at all.

An “emergency condition” is not the same as torture. They also are not defining severe pain but saying severe pain can be an indicator of an emergency condition.

2340 did not define “severe”. The lawyers had to look elsewhere for definitions of severe. This is a definition of severe used in conjunction with emergency situations. So, to rise to “severe” pain it must be an emergency condition (there were three factors that defined emergency condition; see above). Albeit, not the best definition, I agree.

The only other way to get them would be for war crimes. Those charges certainly could be brought but as a political matter almost certainly won’t.

America does not prosecute it’s own citizens for violating the law of war (jus belli). Other countries would do that. We have statutes in place that trump the laws of war. They will be prosecuted (if they are) under the CAT or 2340 depending if the acts occurred inside or outside US jurisdiction.

But yes, other countries can prosecute them for war crimes.

So, we are left with sanctions from the Bar.

Anyway, the main thrust of my argument is that their interpretation of CAT/2340 is unquestionably bad and was in error as a matter of law…

the legal opinion was so egregiously poor…

One more time…The Senate’s Understanding (binding law) regarding the CAT: The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering.

This was written by the Senate of the Government of the United States. It shows what torture IS, and it most certainly can allow for Torture Lite. If you can’t see that, then I just can’t explain it. We both want the same thing, make waterboarding illegal. I think you need to change the CAT/2340, you think it’s fine as written.

Indeed that is the point of the Bar sanctions being sought. Not that they did anything illegal but that the legal opinion was so egregiously poor as to (possibly) merit stripping them of their ability to practice law ever again.

They will likely be sanctioned by the bar, but it won’t be for an “egregiously poor” written legal advice. It will be because they lack the required moral character to be a lawyer. (ha, don’t all lawyers though, by definition, lack that?). They lacked the moral character for suggesting waterboarding (an immoral act) on people.

Now, why these “scholar” guys wrote the memo’s, instead of JAG lawyers, and other military type lawyers, is a failure.

[SteveG1]

@CoolHandCox

No.

Remember, the “lawyers” here weren’t “I’m Jim Adler, The Texas Hammer!, Been injured on the job? I’ll fight for your lost wages!”

The lawyers were the Justice Department for the United States of America. If they say something isn’t quite torture, and this law has never been defined before nor anyone convicted under it, we’re moving more towards good faith reliance on their opinions.

But these laws are, and were, on the books. Hence all the legalistic wangling, wordsmithing, and “defining” that was done. They were trying to get around laws that already existed.

[CoolHandCox]

@SteveG1

But these laws are, and were, on the books.

but what did they mean “exactly”. The laws were never used. The laws did not define any of the elements needed to violate them. They were asked, and did, provide legal opinions pertaining to what would actually violate the law, and what would not; and they pushed it all the way to the tip of its legal limit.

ex. crim law 101. Let’s say “murder” means for one human to intentionally cause the death of another human. No one has ever been convicted of murder before. There are no definitions of the word “cause.” A lawyer might be asked to determine what it means to cause the death of someone. That lawyer might draw a legal line in the sand (based on similar uses of that word) to determine for someone to “cause” another’s death they have to die within 365 days as a result of the person’s actions. Anything over that line is too attenuated to "cause’ someone else to die and you will not have fulfilled the element of causation. so no murder.

It’s just a hypo to explain what a lawyer would do when asked to give legal advice.

[Der_Trihs]

Isn’t all this wrangling over legal interpretation besides the point ? Torture is evil; declaring it legal just makes those who do so monsters, just as declaring slavery legal made those who did so monsters. The scum of the world - us, in this case - often declare their evils to be legal.

[CoolHandCox]

@Der_Trihs

Isn’t all this wrangling over legal interpretation besides the point ? Torture is evil; declaring it legal just makes those who do so monsters, just as declaring slavery legal made those who did so monsters. The scum of the world - us, in this case - often declare their evils to be legal.

Unfortunately, America is a nation of laws. Being evil is not illegal. Being a monster is not illegal. Violating an enacted statute is.

So, you can sit there and think because Cheney is just so evil and doesn’t have a problem with waterboarding, that he should be in jail for being a smug monster. And the fact that he won’t be, makes America the scum of the world. OR…

Try this. Change the law. Here is the link to find your local US Congressman; email them*.

Say this (or something similar); cut n paste at will.

*I am extremely unhappy with the way 18 U.S.C § 2340 (Title 18) is written. It does not conform with American values and what a normal American would consider torture. Everyone knows waterboarding IS torture, yet under §2340 if someone doesn’t specifically intend to violate it, then they are not guilty. This seems like a technicality and very unfair. It allows for obvious loopholes like good faith reliance even if you should know better. If someone should have known they were inflicting severe pain on someone, they should be guilty. Period. Please change the specific intent mens rea, and replace it with “knowing or should have known” mens rea. I urge you to take action, and will be awaiting changes to the law.

Your loyal constituent,

Reasonable Man*

*If you really want to put some fire under your Congressman’s ass, say the above in a dated written letter. Make a copy for yourself. Mail it return receipt requested. Then email him/her saying you wrote them a letter, have a copy, and want to see some action taken. They will know what all that means and at the very least, it will ensure your letter will be read. If enough people write, then you got a stew goin’ baby.

[Der_Trihs]

@CoolHandCox

Unfortunately, America is a nation of laws. Being evil is not illegal. Being a monster is not illegal. Violating an enacted statute is.

So, you can sit there and think because Cheney is just so evil and doesn’t have a problem with waterboarding, and he should be in jail for being a smug monster. And the fact that he won’t be, makes America the scum of the world.

It does, and America is. And if torture is legal, that just means that the law has no moral authority.

[bengangmo]

@CoolHandCox

Unfortunately, America is a nation of laws. Being evil is not illegal. Being a monster is not illegal. Violating an enacted statute is.

This point needs to be emphasised - and underscores why everybody needs to take action.

Laws are supposed to be a reflection of the mores of society. They are meant to provide a means to stop actions, that we, as society think are wrong.

If America has laws that condone, allow or otherwise don’t stop torture what does that say about you as a society? Is it a society that you want to be associated with? Is it a society that has ANY moral authority in any conflict anywhere?

How can Pax Americana work if you condone acts that are the equivalent of the worst of the “leaders” you want to displace/

This is why everyone should be taking the action that Coolhandcox advocates

[Whack-a-Mole]

@CoolHandCox

but what did they mean “exactly”. The laws were never used. The laws did not define any of the elements needed to violate them. They were asked, and did, provide legal opinions pertaining to what would actually violate the law, and what would not; and they pushed it all the way to the tip of its legal limit.

As I have pointed out repeatedly they pushed the definition beyond the legal limit. The opinions they rendered are insupportable as a matter of law. So much so that they may well face sanctions from the Bar for it.

Yes, people relied on these opinions and did things on that basis which (if the administration wanted to prosecute them which they don’t) could provide a legal defense.

The laws existed. Their interpretation of those laws was wrong to the point of professional misconduct. Can you cite a scholarly legal analysis that supports their findings? I haven’t seen any.

In short, they had a preconceived goal and set about to contort the law to fit that notion. Remember there were lawyers in the DoJ who did not agree with making waterboarding and such “legal” via their opinion. They were replaced with someone who would. The administration set about to find someone to provide them a legal shield and found people willing to do that for them. As a matter of law it is bogus.

[kaylasdad99]

THERE MUST BE A CONSEQUENCE FOR CHENEY/BUSH!

Anything that purports to close the barn door after the cow has wandered off makes this impossible to achieve.

[Whack-a-Mole]

@kaylasdad99

THERE MUST BE A CONSEQUENCE FOR CHENEY/BUSH!

Anything that purports to close the barn door after the cow has wandered off makes this impossible to achieve.

I agree.

Not going to happen though.

[CoolHandCox]

@Whack-a-Mole

In short, they had a preconceived goal and set about to contort the law to fit that notion. Remember there were lawyers in the DoJ who did not agree with making waterboarding and such “legal” via their opinion. They were replaced with someone who would. The administration set about to find someone to provide them a legal shield and found people willing to do that for them. As a matter of law it is bogus.

So what. I can tell you’re not a lawyer (that’s a compliment, trust me) and you’re not truly appreciating how hard it is to violate the current statute. Let’s pretend there was no lawyers and no memo’s.

On your own, or take it to GQ and ask for a lawyer’s opinion (you can take it to GQ because there is one right answer): if you were trying to prosecute someone for torture, which law would give you the greatest chance of showing the torturer is guilty? (and why?):

(a) to generally intend to inflict pain and suffering on someone in your custody.

(b) a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering

If both of those honestly sound pretty similar, and torture is torture is torture and the name of the Act is “Convention Against Torture” so that’s all i need to know, then you should take it GQ and see why they are miles apart. Without being a lawyer, to me, (a) sounds like torture, and (b) sounds like Saw I through V.

I couldn’t have said it better than bengangmo; even if you don’t believe me, you should take 45 seconds and cut and paste and email what I said in post #314 to your Congressman.

So much so that they may well face sanctions from the Bar for it.

This means the current laws governing torture are inadequate; to cover their actions, the actual waterboarders actions, or the “higher ups”

(I’m going to start a new thread to show you what I think of the DTA, it’s going to be super neat)