Comment from sashal
Time December 11, 2007 at 8:59 pm PST

 The fact remains that someone who is subjected to a technique that frightens them like waterboarding does, and is so motivated to avoid repetition, will confess to anything – they could have gotten Abu Zubaydah to take responsibility for Pearl Harbor. Likewise, Master-Sergeant insert-name-here will confess to burning Iraqi prisoners alive if he thinks it will avoid another session on the waterboard. Remember the captured pilots paraded on TV during the first Gulf War, who confessed to bombing civilian targets and expressed remorse for their crimes – and who had visibly been beaten up? What was the Western feeling about that? Outrage and disgust.

Comment from Michael van der Galien
Time December 11, 2007 at 9:06 pm PST

My view, then, in light of the circumstances that prevailed at the time, a lesser morality was violated to preserve a greater morality. More succinctly, in this instance, the end justified the means, as did the willingness at an earlier time to confront Nazi Germany.

I expect to be soundly criticized for setting forth this view. So be it.

I understand your reasoning, but I disagree very strongly. At least from a legal perspective (and probably even from a moral perspective). Your post, I find this interesting, doesn’t address the legal issue. The law outlaws torture at all times, and at all circumstances. In other words: there’s not just a moral question here, it’s a legal question. If you believe waterboarding should be allowed, change the law, withdraw from treaties, withdraw from the geneva convention and so on.

So – you address the ‘moral’ problem (we disagree on that, but I understand your reasoning), but leave the legal question untouched.

The law is simple: torturing is illegal – in all circumstances – thus the person who tortures should be prosecuted. In this case, the CIA agent himself admits that he tortured people, thus he should be indicted asap.

At least, that’s my view. Again – I respect your opinion, and I think that people will generally respond with understanding to it – we disagree.

And that’s not a problem: hell, it’s one of the major strengths of this website.

Comment from C Stanley
Time December 11, 2007 at 9:12 pm PST

Gee, Michael, now I’m starting to think you really were picking on me since you went on and on about how you can’t believe anyone can support the use of torture under any circumstances- and I wasn’t even supporting it but here Marc does and you say:

I respect your opinion, and I think that people will generally respond with understanding to it – we disagree.

LOL, just kidding of course.

About the CIA guy who gave the interview- didn’t he say at one point that he wasn’t actually the one doing the waterboarding? And I don’t think he admitted to authorizing it either, so I don’t know if there’s anything he could be prosecuted for (I imagine his answers were carefully worded to avoid direct responsibility too.)

Comment from sashal
Time December 11, 2007 at 9:25 pm PST

Marc, I suppose you think that we’ll ‘only’ torture terrorists in cases of life and death circumstances? Who does that include? Only foreigners? Suspicious Americans with dark skin (say, born in India, which is not free of terrorist acts)? What circumstances are life and death? Bombings? Political assassinations? Your neighbor reporting you to the government as a guy who looks suspicious? You basically want to give the government freedom to painfully torture anyone they want, which includes you and your family, on the off chance that they MIGHT catch someone somewhere doing SOMETHING that MIGHT cause harm.
If people are  that afraid of being hurt by a terrorist, maybe they should move to a nice totalitarian country that tortures with impunity and has a  disregard for civil liberties, like Russia (what’s that? They STILL get terrorist attacks there? Strange).

Do you  understand the slippery slope you guys want to put America , the beacon of liberties, freedom and democracy with your tendencies to allow government to become more and more authoritarian, more and more uncontrollable?

Comment from Michael van der Galien
Time December 11, 2007 at 9:25 pm PST

Gee, Michael, now I’m starting to think you really were picking on me since you went on and on about how you can’t believe anyone can support the use of torture under any circumstances- and I wasn’t even supporting it…

That’s the advantage of being a co-blogger.

Comment from C Stanley
Time December 11, 2007 at 9:30 pm PST

Ah, privileges. Guest blogging doesn’t count?

Comment from Jason Steck
Time December 11, 2007 at 9:32 pm PST

Well, geez, Christine.  Exactly how many times do we have to invite you to become a regular contributor before you take the hint?

Comment from Marc Schulman
Time December 11, 2007 at 9:32 pm PST

MvdG,

You’re right — I overlooked the legal issue.   On that score, I would favor legislation defining the circumstances under which waterboarding could be employed.  Perhaps the President would have to declare a state of national emergency (as FDR did) and Congress would have to approve.

Comment from Michael van der Galien
Time December 11, 2007 at 9:35 pm PST

I’ve asked her several times Jason, to no avail. "Busy" – well, who isn’t (except for university students such as myself)?

And no, Christine, guest blogger doesn’t count, see Jason’s comment

Marc: I’m not sure how that would work. That would mean that there’s a state of emergency for… how long? Years? Decades? When a terrorist suspect is captured? If so, why state of emergency? You captured him already – thread is reduced.

It seems to me that the only option would then be that you should advocate the US withdrawing from certain treaties, no?

Comment from Marc Schulman
Time December 11, 2007 at 9:39 pm PST

Sashal,

By your logic, nobody should be put in jail because, as has been proven, some of the people who are put in jail are innocent.  The result, of course, would be anarchy, and the anarchy would result in the loss of many innocent lives — many more than the number of jailed innocents.

Could you assuage your conscience by saying to yourself: "Well, it’s too bad that people have died as a result of anarchy, but at least we know that there are no innocent people in jail?"

Comment from sashal
Time December 11, 2007 at 9:44 pm PST

Really? Is that what my logic brings to?
Well, then, torture away.
Let’s see what future will bring to this wonderful country with population ready to acquiesce to government’ abuses…

Comment from Marc Schulman
Time December 11, 2007 at 9:54 pm PST

MvdG,

The state of emergency would have to be renewed and re-approved, perhaps on a quarterly basis.

Regarding the terrorist having already been caught:  The issue isn’t the terrorist act that’s already happened; its the prevention of planned future attacks.  That means that only high-level terrorists — those who we know to be in a position to have knowledge about future plans — should be subject to waterboarding.  When he was captured, we knew Zubaydah was such a person.  The intelligence on Zubaydah preceeded his capture.

Re treaties: If amending treaties so that we reserve our rights if a state of emergency has been declared and approved is required, I would favor it.  I am not willing to put at greater than necessary risk the lives of my fellow citizens in the name of treaties that were signed before the advent of catastrophic terrorism.

Comment from Jason Steck
Time December 11, 2007 at 9:58 pm PST

Marc, your argument is consequentialist — that torture is justified when the consequences of not torturing outweigh the harm caused by the torture.

There are two different counterarguments that require response for your argument to stand up:

1) The consequentialist riposte: Torture cannot be shown to be absolutely necessary as a means of preventing the greater harm. If there was a less morally harmful option to the same end OR if torture is ineffective at gaining the needed information to prevent the greater harm, then the opportunity cause in terms of consequences would mean that torture was immoral even under consequentialist logic. Were there actual attacks prevented by information gained from the torture of KSM? Would those attacks have been impossible to prevent any other way? Without clear and convincing answers to those questions, the justification for torture doesn’t stand even under consequentialist logic.

2) The deontological response: This far more common response is to state that the ends do not justify the means and that there are certain acts that are so morally reprehensible that even the prediction of good consequences cannot justify the violation of the moral rule in question. Moral rules are seen as trumping probabilistic analyses of consequences. By this view, torture is contrary to who we are at a fundamental level and the "harm" of sacrificing that for some hoped-for gain is considered to be infinitely bad, automatically outweighing any consequentialist logic.
Think of it this way — we could, in theory, solve the problem of al-Qaeda by blanketing several regions of the Middle East and South Asia with nuclear weapons. We have the number of warheads possible and by completely eliminating all of the people in those areas, we could demonstrably improve our national security. But we don’t do it and we don’t even consider it. We don’t even undertake the calculations to see if it would be net beneficial. Such an option is off the table on moral grounds before the discussion even begins. Many people consider torture under similar cognitive blacklist and that is not accessible from your consequentialist grounds.

My point in making these distinctions is to make the contours of the discussion more clear, not to resolve them. The consequentialists and non-consequentialists are fundamentally speaking a different language and using different criteria for weighing outcomes. Unless advocates recognize which language is in play, there is no way the conversation will ever do anything more than tread in the same path it always does in the trivial media.

Comment from Tully
Time December 11, 2007 at 10:01 pm PST

Define “torture.” Because there are actual definitions available, ones that seem to be ignored in favor of one’s own assignation of any interrogation technique one doesn’t like as “torture.”

I’ve reviewed US Code on torture many times–the legality of waterboarding may be somewhat questionable, but it’s not quite definitively “torture” under US statute. And without exact definition, “torture” is whatever the person calling it torture wants it to be. Your local police department can quite legally do many things that the hysterics of the ‘net rant about as “torture.”

Congress has had multiple opportunities to more explicitly define torture to include waterboarding. They have not done so. The U.S. definition of torture can be found at U.S. Code, Title 18, Sect. 2340.

Comment from Jason Steck
Time December 11, 2007 at 10:05 pm PST

Tully, the convention on torture (to which the United States is a signatory, thus elevating its prohibitions to a level higher than mere statute — treaties have the same force and effect as the Constitution itself in the United States) provides a definition of "torture" which waterboarding clearly meets.  We don’t need to appeal to the bizarre expansions from the nutroots to condemn the practice of waterboarding as "torture". 

Also, even the practicioners of waterboarding concede that it is appropriately labeled as "torture".  They simply argue that it is justified on consequentialist grounds.  That is a fair argument to engage, but let’s drop the semantic dodge.

Comment from Michael van der Galien
Time December 11, 2007 at 10:16 pm PST

Well said in your last comment Jason and with regards to comment #13: I’m obviously of the second school.

To me, it’s never justifiable.

Comment from Tully
Time December 11, 2007 at 10:33 pm PST

You’re flat-out wrong there, Jason, as a matter of law.

I’ve read UNCAT as well, and the sole expansion that would definitively bring in waterboarding is some very relative and ambiguous language that’s loose enough to be meaningless without specific statutory definition and application–and that language is not definitional torture under UNCAT. Nor does UNCAT supersede Title 18, Sect. 2340, as that is the specific statutory implementation of UNCAT for the purposes of US law, written to conform with UNCAT. Call that a “legalistic dodge” if you wish, but it is NOT a semantic one. It’s the exact relevant law.

UN Conventions have only the force to which the signing state agrees (including the limitations and exemptions expressed in their attached declarations) and subsequently enforces by specific national statute. Namely, in the case of the US, USC Title 18 Sect. 2340. The jurisdiction for international enforcement is only that of the designated enforcement body itself. In the case of UNCAT, that’s the Rome Statute forming the International Court, and the US is NOT a ratified signatory to the Rome Statute and the International Court.

Nor, despite the claims of some, can even ratified international treaties supersede federal statute by extra-Constitutional claims, and only Congress has the Constitutional ability to pass statutes in the United States. Thus USC Title 18 Sect. 2340 is the relevant definition for ALL relevant purposes under US law.

That is not a semantic dodge. It’s the exact legal standard. Once you step outside the legal standard you are left with nothing but rhetorical claims of torture being whatever you want it to be for your rhetorical purposes. An extremely subjective and relativistic “standard,” that.

Comment from Marc Schulman
Time December 11, 2007 at 11:03 pm PST

Jason,

Not being schooled in the literature, I did not know that the position I’ve taken falls into the "consequentialist" camp.

As to the questions you raise in item (1) of your comment, no one not directly involved can answer those questions with total certainty.  I even question whether those who are directly involved can do so.

So my question to you — and it’s not meant to muddy the waters — is how certain is certain enough?

Comment from Jason Steck
Time December 11, 2007 at 11:25 pm PST

Tully,

It seems ridiculous to call ourselves a signatory to a treaty when the enacting statute falls short of what every other signatory to the same treaty considers the normal interpretation. I know that using international sources as contributors to domestic interpretation of human rights law was very controversial when Justice Kennedy did it, but I think it is necessary to being a global leader in human rights law. I think that if in practice our behavior is indistinguishable from non-signatories and blatant violators like North Korea or North Vietnam, we would forfeit any claim to be civilized, let alone an exemplar of civilization.

The definitive test in MY belief that waterboarding is torture under the UNCAT is the knowledge that the U.S. would have interpreted it as such when condemning Argentina or the Soviet Union in earlier decades. For us to change our standard of interpretation just because now we think (wrongly, IMHO) that torture might have some instrumental utility for our anti-terrorism campaign would reveal us as a nation to be hypocrites and pretenders at best. We are bound by the standards to which we have held others, in my opinion.

My argument is that we should not be appealing to hair-splitting reinterpretations and minimal standards of compliance about something as appalling as torture. If someone wants to argue that treaties sometimes have to be violated because of some specific exigency, that’s an argument that I’m prepared to engage as at least potentially legitimate, but I don’t think that we do our own values due service if we go further to claim that the treaty itself can or should be reinterpreted more leniently just because we are now in the role of perpetrators instead of assessors. There is a world of moral difference between saying, "we need to violate the law because of X" and saying, "we need to reinterpret what the law is to make it so we can do whatever we want".

And torture is the last place where we should be splitting hairs.

There is also the principle in international law of “reciprocity”. If the United States were to formally undertake an interpretation of the UNCAT that says waterboarding is not torture, than it would become legal under the UNCAT for American detainees in other countries to be waterboarded. The U.S. would have no foundation to claim that their human rights were violated by doing so.

Comment from C Stanley
Time December 11, 2007 at 11:28 pm PST

Aren’t there actual cases where the US did prosecute agents of other countries for waterboarding our guys? That would seem to prove Jason’s contention that we’d interpret that way when it suits us.

Comment from Jason Steck
Time December 11, 2007 at 11:33 pm PST

The U.S. frequently criticized the Soviet Union as being in violation of international human rights law for practices that are exactly the same as what some in the U.S. now claim are legal.

And I don’t think it is legally OR morally legit for us to just change our standards of interpretation based on which end of the judging we are on.

Comment from Marc Schulman
Time December 11, 2007 at 11:36 pm PST

Jason,

I agree: the former, yes; the latter, no.

Comment from Marc Schulman
Time December 11, 2007 at 11:39 pm PST

I appreciate all the thoughtful comments on the legal side of the issue.

What I would like to see more of are comments pertinent to the central point of my post: that morality can be in conflict with itself, and that it is necessary — indeed, inevitable — to prioritize.

Comment from Jason Steck
Time December 11, 2007 at 11:45 pm PST

Marc,

What you are seeking is what is called a "virtue ethics" approach to the issue. Virtue ethics, in the Rossian sense, argues that often two moral imperatives (deontological logic) are in conflict, forcing one or the other to be violated or at least set aside. The key step is then to construct a conditional rule that specifies exactly when and how a given prioritization will be applied. Thus, a policymaker who is trying to be moral may construct a rule that says torture is acceptable if certain conditions apply regarding its necessity, efficacy, and limits.

It is vitally important to note, however, that such a line of moral reasoning specifically accepts that an imperative IS being violated. Thus, reinterpreting prior standards to deny that the technique being used is "torture" at all is a moral dodge, not in keeping with the reflexivity called for under the virtue ethics framework. Virtue ethics recognizes that it is not possible to uphold all of one’s moral obligations simultaneously as they will sometimes conflict. But it does not take the additional step of reinterpreting the specific obligations that are overridden to make it so they no longer exist as obligations at all.

Thus, I can see a potential case for arguing that waterboarding is morally permissable in spite of its illegality as torture, but I am much less inclined to accept an argument that tries to claim waterboarding is not torture at all. Having personally come very close to drowning, I don’t see any way in which waterboarding can be seen as any different than electrical shocks, burning, or other actions that are universally accepted as torture. If someone wants to argue that cold rooms or some stress positions are not “torture”, I’m more willing to listen, but waterboarding is as clear-cut to me as blowtorches.

Comment from C Stanley
Time December 11, 2007 at 11:52 pm PST

Marc,
I’ve often thought about those conflicts, even in the context of justification for war itself. I am completely ‘prolife’, meaning anti-abortion and anti-death penalty. Yet I hold a different standard, obviously, in the context of war. The only rationale I can come up with is that I have a different standard for preservation and defense of a nation than I do for self-preservation of individuals. In the case of individuals, killing is only justified if there is an immediate threat to one’s life, while in war, the threat to the existence of a free nation and the security of the citizens of our nation create a different rationale.

I also view it differently because groups/nations don’t act with the same moral conscience as individuals. Turning one’s other cheek, while difficult in a personal interaction, does have the potential to demonstrate to another individual how to react without violence, but nations/terrorist groups are not interacting in such teachable moments (instead, a nation turning it’s cheek against attack tends to embolden the enemies to attack further against the weakness.)

That said though, I do want us to act as morally upright as possible and set the standard. That’s why I do oppose torture even if it is possible to use certain techniques effectively, and that’s why I’ve changed my position on the Bush doctrine of preemptive war. Theoretically I think it is justified to go to war against another power in order to preempt a direct threat, but (great) infallibility of  human judgment and intelligence means that there’s too much margin for error.

Comment from Tully
Time December 11, 2007 at 11:56 pm PST

I’m sorry, Jason, but it’s NOT hair-splitting, and it IS the standard for UNCAT treaty enforecement in US courts against US persons. Period. That statute is the explicit Constitutional compliance with UNCAT treaty Article 1, the relevant portion of UNCAT, written specifically for that EXACT purpose. Nor do I know of any case in which the US has called someone else’s waterboarding “torture” under the UNCAT treaty, whatever it might have been called in the course of ongoing political rhetoric. Our standard of interpretation is our own treaty-implementing law, and if our own law has not been violated, all the bluster about “rule of law” and such is meaningless bluster.

And there is no “normal” interpretation of a treaty outside of what the nation has exactly agreed to, which includes the signing declarations. No nation is bound by the parts they did not agree to, but most specifically exempted themselves from. Period.

Your argument there is explicitly political, not legal. But for the purposes of banning the use of something we have to be legalistic and definitional. Otherwise we are left with the rhetoric of the moment as our only guide to behavior–and often contrary ex post facto rhetoric at that, as the revelation of Pelosi and Rockefeller’s knowledge of the technique shows.

My argument is that we should not be appealing to hair-splitting reinterpretations and minimal standards of compliance about something as appalling as torture.

DEFINE TORTURE. It’s right there in US Code, a direct reflection of UNCAT Article 1, written specifically to conform to same, and waterboarding is only very questionably “torture” under that statute. It either violates the statute, or it does not. Under a strict reading, it does not, nor do the other techniques employed. Under a loose reading, depriving a smoker of tobacco is “torture.” The courts go with the strict reading.

There is a HUGE range of interrogation techniques that fall between the standards of POW status (polite questions during normal waking hours for a limited amount of time, with no rewards or punishments of any kind offered as inducements) and the US (UNCAT) statutory (treaty) definition of torture. Nor does the article you link provide a basis for your claim that the US has called those techniques “torture” in any but a rhetorical sense. They are treaty violations if employed against legitimate POWs–but so is offering a POW cigarettes if they answer a few questions for you.

You’re proving my point, which is that rhetoric is displacing law in the discussion. But rhetoric is not law. If you don’t want those techniques allowed you have to change the law. As Congress did with the Detainee Treatment Act of 2005.

Ethical stances are all peachy keen, but field personnel need precise guidelines–as you yourself argue. They’re not going to hold ethical discussions about it, they’re going to check the book. If they step outside the book, they’re on the hook. If they don’t, they’re not.

Comment from sashal
Time December 11, 2007 at 11:56 pm PST

Jason , thank you for your great comments and  the moral and lawful stand our country is STILL  LOVED AROUND THE WORLD for  by major civilized nations….

Comment from Marc Schulman
Time December 11, 2007 at 11:57 pm PST

Jason,

I don’t think I’ve said anything to the effect that the fact that an imperative is being violated should be ignored or obfuscated (If I have, please cite).  The Bush administration should be damned for denying what is in plain view.  The all-too-transparent cover-up is more damaging than what is being covered up.

But, then, we’ve seen this before.

Comment from Jason Steck
Time December 12, 2007 at 12:00 am PST

Tully, what I do not think you are grasping is that in international law what you condemn as merely "political" or "rhetorical" IS relevant to establishing what is "legal".

You may be right about what the text of the U.S. code is, but the question at hand involves more than just American citizens within the territorial borders of the United States. It involves citizens of other countries AND it involves how Americans will be treated on the territory of other countries.

So, with all due respect, I think your textual legal focus is too narrow of a scope for this conversation. I grant that field personnel need specific guidelines, but what we are arguing about here is whether the narrowest reading of the U.S. Code should constitute the EXCLUSIVE basis for those guidelines. We frequently use additional factors in determining what certain people should or should not do. Doctors, for example, are bound both by the U.S. Code and a code of professional ethics and oftentimes by additional codes of conduct from their sponsoring organizations. The U.S. Code may be the beginning of their set of guidelines, but it is not the end. The same principle applies to CIA field agents. The text of the U.S. Code regarding torture may be the beginning of their decision about whether to undertake waterboarding, but I don’t think it is the end.

So, yes, my argument IS “political, not legal”. My point, however, is that the issue of interpreting what is “torture” transcends the merely legal and mandates extensive engagement with the ethical, the moral, the political, and even the social definition of who we are as a people.

And I don’t think waterboarding is permissible under that broader scope of analysis, at least not without an extensive additional engagement with a virtue ethics approach.

Comment from Jason Steck
Time December 12, 2007 at 12:06 am PST

Marc, I don’t think that you are denying that waterboarding involves violation of a moral imperative against torture, but I think Tully is denying exactly that.

Comment from James Spark
Time December 12, 2007 at 12:08 am PST

Mr. Schulman, Jack Bauer is fiction, mostly, and rightly so.

The part of him that is not fiction represents everything that the the Magna Carta and the establishment of rule of law, the Enlightenment, the Declaration of Independence, the Bill of Rights and the Constitution of the United States of America, every convention and treaty on torture and the treatment of POW’s, every attempt at some form of jurisprudence in international relations struggles mightily against:  Arbitary and summary judgment or treatment of the powerless by the powerful.

This is not remotely the tired old canard of "terrorists = Nazi’s".  Terrorists do not and will not ever represent a similar existential threat.  The Nazi’s were far from powerless, particularly in 1937.  We will not ever have a similar 1937 moment in the so-called GWOT, but we are most definitely having 1937 moments in the GWOL(liberty), GWOR(rationality) and most tragically the GWOE(Enlightenment).

You can have your Machiavellian, Faustian bargain-basement government Mr. Schulman, where might makes right and the ends justify the means.  I don’t claim to "stand with the angels" and I definitely do not "have an abiding faith in human nature and a better world":  It’s why I put my faith in due process and the rule of law.  But I will not join you in your narrow and bloody-minded return to security at the expense of liberty, to barbarism, and to tyranny.  Any self-respecting American patriot would feel the same.

Comment from Jason Steck
Time December 12, 2007 at 12:12 am PST

Also, Tully, your argument that states are only bound by what they
explicitly agree to is flatly wrong. You may be the expert in U.S. law here, but I’ve got a pretty sound familiarity with the peculiarities of international law. And international law uses not one but TWO major sources: codified law (treaties — what states explicitly agree to) and customary practices. These sources overlap where it comes to the interpretation of treaty obligations. The expectations of other actors in the international system about how a treaty will be interpreted are oftentimes as relevant as the text of the treaty itself.

I recently purchased an excellent new casebook on international law that I have at the office, so I’d be happy to pump out a couple of references when I get the chance. But my basic point is this: Your scope is too narrow for the question at hand.

Comment from Tully
Time December 12, 2007 at 12:12 am PST

STILL disagree, Jason. Back to my first two entences in thread:

Define “torture.” Because there are actual definitions available, ones that seem to be ignored in favor of one’s own assignation of any interrogation technique one doesn’t like as “torture.”

Americans will be treated in other countries by the standards of those countries, as they have always been. The idea that they will be given different treatment in response to our own treatment of terrorists is fallacious, one assuming a strict standard of moral equivalance among governments. But the governments will either adhere to their own standards, or none at all, not to ours.

IF they adhere to treaty, then the legal definitions become paramount and overarching, of prime importance. If they do not adhere to treaty, the legal definitions are meaningless–they will do as they will. And many already do.

Comment from Jason Steck
Time December 12, 2007 at 12:16 am PST

One of the most challenging things in teaching international relations is getting students bound for American law schools to understand the fundamental differences between domestic and international law. Clearly, I am failing here to get that point across to an actual lawyer.

Seriously, Tully, I respect your professional expertise, it would be nice if you would respect mine.

Comment from sashal
Time December 12, 2007 at 12:23 am PST

Post # 31 by James.
I wish that there were virtual hugs .

I am going to save it to print it and to give it to all my friends and relatives to read.
Jason Steck and James Spark, you made my day.
I know that I will go to bed with the better thoughts about the future of the USA.

Comment from Jason Steck
Time December 12, 2007 at 12:27 am PST

Actually, sashal, while I thank you for your kind words, I think James’ abusive tone and presumptuousness about ascribing motives and positions to others (does he really think that those we disagree with are opposed to liberty, rationality, and the Enlightenment? must every disagreement carry a Nazi comparison?) was NOT a helpful contribution to this discussion.

Comment from Tully
Time December 12, 2007 at 12:28 am PST

I am not an attorney. But one doesn’t have to be to read the relevant statutes and SCOTUS decisions.

And you still haven’t defined “torture,” without which it’s still all dueling rhetorics and conjugations and appeals to approval. EX:

“Our interrogation methods are reasonable and lawful steps taken to prevent the loss of innocent lives. Yours are harsh techniques that we disapprove of in principle and would only use in extremis. But those guys…their methods are torture!”

Do you see what I’m getting at here? I do agree I’ve wandered far from the “lesser-of-two-evils” discussion, but you can’t tell which is lesser without knowing what both evils really are, no?

Comment from Xel
Time December 12, 2007 at 12:38 am PST

Maybe it isn’t the acts, but also the express connection between the negative enforcer and the end of said enforcer if some information is given.

Information that will probably harm US strategy in the end, as it is, well, mostly false. 

Maybe a definition of torture that works is that the only defense is to ask for a definition. But I dunno, this is actually a good time to make sure nothing of the sort happens again.

Comment from Jason Steck
Time December 12, 2007 at 12:38 am PST

Tully, my definition of "torture":

For the purposes of this Convention, torture means 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.

Having personally experienced near-drowning, I hereby provide testimony that having water poured into your lungs constitutes "severe pain or suffering".  I expect that being physically restrained in a waterboarding rig during the process would not alleviate the suffering.

http://www.hrweb.org/legal/cat.html

(Interestingly, it appears that the United States has not ratified the Convention.  I’m very disappointed.  It feeds your argument about the legality, but also feeds my argument about how your legal scope is too narrow to address the full range of implications for the torture issue.)

Comment from James Spark
Time December 12, 2007 at 12:44 am PST

"Any condemnation of the waterboarding of Zubaydah as an immoral act must also consider whether, given his lofty position in al-Qaeda, it would have been a greater immorality to have not done everything possible to prevent the loss of additional American lives, which could have numbered in the thousands or tens of thousands."

I think we should have waterboarded the Tobacco Scientists and the board of directors of every tobacco company back in the ’50’s and ’60’s,  frankly.  We could have saved millions of American lives.  Right now I can think of many corporations whose executives should be waterboarded, if saving thousands of American lives is truly paramount.

Comment from James Spark
Time December 12, 2007 at 12:54 am PST

Excuse me, but I didn’t introduce the Nazi’s = terrorist comparison meme.  That would be the author of this thread.

I would think anyone who thinks they are at all equivalent have some serious issues with rationality.  And if my tone is abusive on those who would bandy about the products of the Enlightenment as something circumstantially expendable or not worth "prioritizing", then "Fie" I say.  Fie, and a curse on both your houses.

Comment from Tully
Time December 12, 2007 at 1:37 am PST

I can show you how waterboarding doesn’t (arguably–I speak not for my own subjective feelings on the matter but to the legal arguments) qualify under the law, Jason, but it would further take the thread off track, so I’ll forbear. It would certainly be at the boundaries of that great grey area between GC POW and UNCAT Article 1 in any case, the arguments are as to which side of that line. The point was that different people/groups define torture differently, and if you don’t define it exactly and objectively on your own behalf you are perforce accepting anyone and everyone’s (widely differing and oft-changing) “standards” in lieu of having your own. But we have our own, one that conforms to UNCAT Article 1, which is the standard that should be applied. Not vague claims of “torture” being whatever someone wants to claim as such.

Interestingly, it appears that the United States has not ratified the Convention. I’m very disappointed.

Don’t be, you’ve been checking a bad or dated source. HRW is simply wrong there. Ratified by Congress 21 Oct 1994, with the declarative proviso that “… nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.” IOW, a treaty’sapplication to the US cannot exceed Congressional statutory authority or infringe the Constitution as interpreted by SCOTUS, a point I already made.

Comment from Chris
Time December 12, 2007 at 4:35 am PST

Unsurprising, I agree whole-heartedly with Jason Steck on this issue.  Did I say unsurprisingly?

For Tully, From the Washington Post:

Twenty-one years earlier, in 1947, the United States charged a Japanese officer, Yukio Asano, with war crimes for carrying out another form of waterboarding on a U.S. civilian. The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.

"Asano was sentenced to 15 years of hard labor," Sen. Edward M. Kennedy (D-Mass.) told his colleagues last Thursday during the debate on military commissions legislation. "We punished people with 15 years of hard labor when waterboarding was used against Americans in World War II," he said.

Comment from Michael van der Galien
Time December 12, 2007 at 11:45 am PST

That’s a great find Chris.

Comment from Tully
Time December 13, 2007 at 2:50 am PST

It’s a bullshit find, Michael, one that supports my point rather than detracting from it. Unless you’rre religious about it rather than rational.

Chris, the statute I cited did not exist at the time. Nor did UNCAT. People were convicted in 1947 of miscegenation as well–that proves nothing about the state of the law TODAY. And it is the law, not some ranting wingnut’s rhetorical assertions, that counts. WHICH HAS BEEN MY CLEARLY STATED POINT FROM THE BEGINNING.

Yukio Asano was convicted not of torture under UNCAT or USC, but of mistreatment of POWs under the Geneva Conventions. Do you understand the obvious difference? Had Asano offered a prisoner a pack of cigarettes to sell out his unit, he would also have been guilty of a GC violation. Had he deprived a prisoner of his Red Cross chewing gum as a punishment, he would have been equally guilty of mistreatment of a POW. (In point of fact, he was also convicted of “unlawfully taking and converting to his own use Red Cross packages and supplies intended for POWs.”)

Now, I have NOT at any point advocated waterboarding or condoned the use of it, I have simply said that it is arguably not illegal under US Code or UNCAT. Which is completely true. Depending on the reading of the codes, waterboarding can arguably fall within the non-banned parctices, because the definitions are somewhat subjective. So you can cram that implication that I am somehow advocating or supporting the specific practice of waterboarding up where the sun don’t shine for you, if’n there’s any room left.

I have also said quite clearly and at length that if torture is not well and specifically defined, then rhetorically posturing against it is nothin’ but fluff. Please, if you wish waterboarding to be clearly defined IN LAW as torture, have at! No argument from me–as a professional pol I helped lobby Congress for the McCain amendment. I think the definitions in both USC and UNCAT could be greatly improved without overly restricting interrogators, even still leaving them with many available techniques that many would find ugly but that aren’t remotely “torture.” UNCAT is full of holes, most of them meant to enable nations to continue using their “traditional” methods under color of law–their own laws, which automatically exempt them entirely from UNCAT for those procedures. Try reading the damn thing, will you?

I get sick of people characterizing anything and everything they don’t like as “torture,” and using sweeping generalizations to condemn everything in sight. Between GC POW-status restrictions (which precludes damn near ANY interrogation, including a whole bunch of things your local PD can do quite legally that SCOTUS would not even blink at once, much less twice) and UNCAT (which pretty much only bans Really Seriously Nasty Things–UNLESS it’s enshrined in your local statutes as permissible) there is a HUGE gray area of allowable techniques. If you want them classified as tirture you have to get real specific about them–because by USC and UNCAT, they are not torture, no matter how much rhetorical posturing people do.

Comment from Chris
Time December 13, 2007 at 5:02 am PST

Tully,
Waterboarding is certainly torture now.

Detainee Treatment Act of 2005:
SEC. 1002. (a) In General- No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

Of course, in the Army Field Manual, waterboarding is specifically banned.

And if you don’t think it’s banned under U.S. law, then perhaps you would agree that these people should be brought up in front of an international war crimes tribunal?

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