January 25, 2005

John Yoo's Very Expansive Read of Section 2340A

"What the administration is saying is we're not going to torture people," said John C. Yoo, a UC Berkeley law professor who, as a deputy assistant attorney general during Bush's first term, worked on torture policies.

"What the administration does not want to say, and I think for good reasons too, is what methods the United States might or might not use short of torture...

...Yoo, who helped write key memos declaring that the Geneva Convention did not apply to accused terrorists, said he did not know whether water-boarding constituted torture.

"It depends on the circumstances," he said, including the details of what was done, the condition of the detainee and what other interrogation methods had been used, Yoo said. The same could be said for sleep deprivation, he said. "I'd probably say that depriving someone of sleep for one day might not be torture — depriving someone for five days would be."

--John Yoo, quoted in the L.A. Times, doing his damnedest to define torture down (again).

You know, I really wish John Yoo would hush up a bit. Let me explain. I have it on good authority that Judge Bybee, who technically authored the 'how-to-define-torture-down' memo, is a tad, er, on the dim side (and so was ingloriously shipped off to the 9th Circuit). Reportedly, Yoo was the guy who actually got in the weeds and drafted the now notorious memo. Then dim Bybee kicked it up the flagpole to an eager yes-man White House counsel (alas, we are far from the days of Dean Acheson, friends). We've previously discussed why lynching Gonzalez isn't the best way forward. But, that aside, might Yoo not show a little chagrin for having written an opinion so stock-full of poor legal reasoning (not to mention ethically defunct advice)--rather than mouth off to the L.A. Times? Or else, perhaps we'll have to camp outside his Boalt fac chambers and keep the rascal up for 4 days (but, God forbid, not five!)--maybe intermittently blasting Eminem in his face and putting a mean dog up near his private parts--when not having fun with a spot of "waterboarding." You know, just for kicks, because torture this isn't depending on, perhaps, how how loud Yoo would have to listen to the mellifluous Marshall Mather's, with what intensity and length of time his head is dunked under the water (let's get a manual on the red-lines here, shall we, so that the 19 year old reserve kids from Peoria know they are playing it straight and narrow the Yoo way amidst the 'boarding), or, even, (though I take it canines are disallowed now...though Woo perhaps rues such effete pull-back) how close the dog gets to drawing blood (note the now iconic pictures depicting odious scenes of groomed attack dogs approaching cowering and dehumanized detainees instinctively covering their genitalia--is this what we want to allow in our military detention centers?). See Mr. President, no harm, cuz no organ failure!

Here's a snippet of Woo-think (one positively marvels at what a bright meritocrat will do to get ahead and please his elders!), disected by B.D.:

Through some pretty shoddy analysis, the DOJ lawyers conclude that for torture to rise to a threshold proscribed by Section 2340 of the USC--it must "be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, even death." [my emphasis]

From where is such comfort drawn? The drafters of the memo pluck out statutory law dealing with "severe pain" in the context of emergency medical conditions necessitating provision of health benefits!

And, hot damn, "severe pain" in this context, for a "prudent lay person," would involve, shall we say, near death experiences. This is not only morally defunct analysis when exported into parsing acceptable thresholds for savage tortures--but it's also just plain crappy legal analysis.

Imagine what David Boies, say, would make of the use of a 'severe pain' definition used in the context of statutory laws dealing with health benefits for emergency medical conditions being shoehorned into the context of interpreting torture law!?!

Woo's smart (summa Harvard; YLS, etc etc). But he's got nothing to be proud of here. Nothing at all. He should be ashamed--rather than preening over at the LA Times. After all, the Administration has repudiated much of the legal argumentation he drafted. Section 2340A, which refers to the provision of the U.S. code that incorporates the international Convention Against Torture, has much wider applicability than Woo argued--the Administration has belatedly concluded.

Ultimately, I lean towards agreeing with McCain and Lieberman, that the standard for treatment of alien detainees should be that: "No prisoner shall be subject to torture or cruel, inhumane or degrading treatment or punishment that is prohibited by the Constitution, laws or treaties of the United States." Maybe we should start a "Conscience Caucus" over here or something... take the pledge Alberto!

CLARIFICATION: Writing the above in haste, some of my language in the immediately preceding paragraph was unclear (as commenter "Al" points out--somewhat uncharitably.) I've tweaked for clarity.

P.S. But should Derschowitizian "torture warrants" be issued for the KSMs of the world?

Read this:

Machiavelli famously said that good men bent on doing good must know how to be bad. And because we all share a social world, he goes on, the virtue of a policy maker resides not in his moral perfection but in the communal result of his act. If one is not already ill at ease with such maxims, consider this: In the ultimate hypothetical case, if a terrorist with hard intelligence about an impending large-scale terrorist strike could be broken by torture, shouldn't it be used? That nauseating question forms the theme of ''Torture: A Collection,'' edited by Sanford Levinson, a professor of government at the University of Texas. What's most striking about these essays is that despite their abstract and theoretical content, they generally do not contradict the depiction of actual interrogators described by Mackey and Miller. The wall between the liberal campus and a conservative, utilitarian-minded military breaks down because the questions are so serious that few of this book's contributors want to engage in polemics, and few -- to their credit -- ever seem completely comfortable with their own conclusions.

To follow Machiavelli further: it is not simply and crudely that the ends justify the means. It is that evil, if it is to be employed, should be used only to the minimum extent necessary, and then only to accomplish a demonstrably greater amount of good. As the Princeton professor Michael Walzer writes, ''It is important to stress Machiavelli's own commitment to the existence of moral standards.'' But knowing what that minimum extent is, and knowing with reasonable certainty that a greater amount of good will result, thwarts scholars and interrogators alike.

The Harvard law professor Alan Dershowitz argues for legally sanctioning torture in ''ticking bomb'' cases. ''At bottom, my argument is not in favor of torture of any sort,'' he says. ''It is against all forms of torture without accountability.'' His rationale is that in ticking bomb cases the idea that torture in some form will not be used is illusory, and the government should not be able to walk away from responsibility for it. That, in effect, would leave the interrogators with all of the legal and moral blame. Jean Bethke Elshtain, a professor of ethics at the University of Chicago, counters that torture is so extreme that it should remain ''tabooed and forbidden,'' and that any attempt to legitimize torture even in the rarest of cases risks the slippery slope toward normalizing it. Seeking a middle ground, Miriam Gur-Arye, a criminal law professor at the Hebrew University of Jerusalem, argues that in the absence of a concrete terrorist threat, only a specific self-defense argument can justify force in an interrogation: it cannot be justified by the more general and utilitarian -- that is, Machiavellian -- argument of necessity.

Interrogators themselves are not above such hairsplitting. After an intense discussion about how humane it would be to deprive prisoners of sleep, and just how much sleep deprivation constituted cruelty, Mackey came to the conclusion that ''if the interrogator followed the exact same regime -- slept, ate . . . and took breaks on the same schedule as the prisoner -- there was no way to argue'' that such treatment was cruel. There is even a name for an interrogator staying with a prisoner until one or the other of them breaks: it's called ''monstering.'' Double-teaming a prisoner, in which different interrogators take turns sleeping, was considered immoral, Mackey says. Because monstering was so hard for an interrogator to endure, it was used only when something important was at stake and the prisoner seemed close to breaking. One interrogator kept a prisoner in a booth for 29 straight hours. It was worth it, Mackey reports: the prisoner had been a translator for Osama bin Laden and disclosed a Qaeda plot to use the chemical agent ricin.

These are all tough questions. Commenters are invited to share their views as we form a position over here. My concern with the McCain-Lieberman standard is the "ticking bomb" hypo--assuming torture can be used efficaciously to stave off a 9/11 (rather than just have the detainee utter something, anything--to stop the torture. Put differently, how effective, really, is such cruel and inhuman treatment?) On the other hand, the "slippery slope" is well illustrated by the so eager legal memoranda churning of the John Yoos of the world. Look, there are no easy answers to these questions. But discuss below, as able, if you think you've got 2 cents worth kicking in.

MORE: Please go read Matt too. Matt sees no need for exceptions, and writes:

Knowing what we know about human behavior and the sort of people who make careers in the law enforcement and intelligence communities, it's a bit absurd to think that an interrogator would ever let, say, a nuclear bomb go off and destroy Chicago when he could have stopped it with a little torture, just because the Geneva Conventions said he shouldn't torture anyone. The world just doesn't work like that.

The real question is, what do you do after the disaster has been averted? Well, in a world where torture is illegal, your interrogator's probably going to have to be arrested. But he's also going to be a national hero, he'll plead his defense of necessity, and no jury in the country is going to unanimously convict him. And even if he somehow did wind up getting convicted, he could be pardoned. We have, in other words, several methods for making ad hoc, ex post facto exceptions to the rules in our common law system. And it's a good thing. It really would be silly to punish someone who'd just gone out and saved three million lives.

So in my opinion no real harm is done by maintaining a blanket legal rule that torture is always prohibited. No catastrophic nuclear attacks will go through thanks to this rule, and no great national heros will go to jail. Conversely, a clear rule does much good. It means that interrogators will only break the rules in the case of some genuine emergency.

Read the whole thing.

Posted by Gregory at January 25, 2005 04:43 AM | TrackBack (14)
Comments

Woo, Yoo, what's the difference ... he's an odious guy either way. Banality of evil and whatnot ...

On Kaplan's piece, whatev. Ticking bomb scenario shouldn't drive the legal debate. If there really is a ticking bomb, nobody is going to give a rat's patootie about the law, and rightly so. However, it's not clear that torture is instrumentally good in the long run regardless of whether it "works" or not. It can tend to turn run-of-the-mill militants into hardcore globally ambitious terrorists -- see Zawahiri and Zarqawi for two examples of small-time guys who were hardened by their time in jail and turned out to be real, er, problems, later.

Posted by: praktike at January 25, 2005 03:32 PM | Permalink to this comment Permalink

I thought we'd banished ticking time bomb arguments in the blogosphere after this Belle Waring post: http://www.crookedtimber.org/archives/002040.html

Posted by: washerdreyer at January 25, 2005 03:57 PM | Permalink to this comment Permalink

Did I read Andrew Sullivan's piece incorrectly, or did he not say that the two cases of torture that were carried out at Gitmo on during the period when Rumsfeld sanctioned "taking the gloves off" did in fact provide good intelligence? If so, then it seems to me that the very incidents that Sullivan argues led to the wide-spread and unjustifiable abuses in Gitmo and Iraq might be justifiable if examined on their own, apart from the precedent they set. Then the question would have to be, could we ever use torture to good effect without setting a precedent for other interrogations?
Maybe a sort-of solution would be to authorize torture, but only by one agency like the CIA and not the army, or to have special units of the army permitted to use torture. Alternately, we could just continue to use the Jordanians. None of these solutions seem very satisfying, but at least they might prevent the sort of trickle-down effect that led to the disaster in Iraq.
Of course, all of my suggestions presume that torture can be effective when applied intelligently (which I think still needs to be demonstrated) and therefore that the use of torture under certain circumstances should be the avowed policy of the US (rather than just something used in ticking bomb emergencies). As for the last point, I can see many reasons why the US should claim the high moral ground and never make torture a policy, but on the other hand, if the US clearly stated that anyone caught fighting for an organization that has not agreed to abide by the rules of the Geneva Convention (or perhaps some other international standard) could legally be tortured, this might act as a deterrent.

Posted by: Alex at January 25, 2005 04:07 PM | Permalink to this comment Permalink

Hey, I have a question: are there not drugs that can be used to make people talk? I thought full anesthetic made people very open to suggestions and ready to talk when they come to. Shouldn't we at least be looking into these things rather than using medieval interrogation techniques? Wouldn’t a painless drug be far more effective and less like torture than water-boarding or stress positions (aka. crucifixions)?

Posted by: Alex at January 25, 2005 04:13 PM | Permalink to this comment Permalink

torture should be defined thusly: "No prisoner shall be subject to torture or cruel, inhumane or degrading treatment or punishment that is prohibited by the Constitution, laws or treaties of the United States."

How is this in any way a "definition" of torture? Really, I am shocked that a corporate lawyer would profer such a shoddy "definition".

When you draft a document, do you use such tautological "definitions"???? Is "Affiliate" defined as "an affiliate"? Or do you actually, you know, DEFINE it - "an entity that controls, is controlled by, or is under common control with..."

Sheesh! The whole point of the exercise is to define what torture means - what circumstances are and are not torture. To do that, you can't just say "torture means torture".

This is why your (and Sullivan's, for example) complaints about our torture policy are not persuasive in the least.

Here's a simple challenge, Greg. Define "torture". And don't use the tautological: "torture means torture". Just define it. And tell me why your definition is better than Yoo's.

Then give me 5 or 10 examples of borderline (meaning not obvious examples, like cutting tongues out, etc) interrogation techniques that ARE torture, and 5 or 10 that aren't, and explain to me why some of them fit in the one category and some of them fit into the other.

I'm sure that you will refuse to do so, just like most every other "opponent" of torture who is "outraged" by the policy. Because your opposition to the policy is based on emotion and not on legal reasoning.

Posted by: Al at January 25, 2005 04:21 PM | Permalink to this comment Permalink

Al,

The definition you referred to does refer to the Constitution and the other laws and treaties that the US is party to in order to provide the "definition." In this sense, it lets those statutes define the specifics, while it sets the broad parameters.

To put it in corporate lawyer-speak, this would be akin to saying that such and such a transaction must comply with such regulations and requirements of the Securities Act of 1933. Therefore, it does not repeat the exhaustive list of rules and regulations each time de novo, but allows for a statutory catchall.

Thus, it is not: torture is torture. It is torture is all manner of treatment prohibited by the Constitution, and the laws and treaties of the US. We'll have to bore into those documents for the particulars.

Posted by: Eric Martin at January 25, 2005 04:40 PM | Permalink to this comment Permalink

Here's a simple challenge, Greg. Define "torture". And don't use the tautological: "torture means torture". Just define it. And tell me why your definition is better than Yoo's.

Precisely. Gregory, who's among the most reasonable and thoughtful of people on every other subject, can only seem to emote when the subject is torture.

Posted by: George at January 25, 2005 04:49 PM | Permalink to this comment Permalink

"Section 2340A, which refers to the provision of the U.S. code that incorporates the international Convention Against Torture, has much wider applicability than Woo argued--the Administration has belatedly concluded."

OK, but who in "the Administration"? If we are naming names and tracking down those who seem permissive toward torture, it would seem right to do the same on the other side.

Posted by: Sammler at January 25, 2005 04:52 PM | Permalink to this comment Permalink

Except that the Consitution doesn't define torture explicitly, very different from how the Securities Act of 1933 works. What you've stated is a fine shorthand to use, assuming that torture is actually explicitly defined somewhere. Where is it, though? Please, point me to the part of the Constitution or elsewhere the explicitly defines how many days of sleep deprivation is permissible, or if any at all is permissible. Let's not forget that Yoo and others were relying on international law and agreements when drafting these memos-- and then was promptly attacked for merely following the letter of the law and not the spirit, and for allowing certain actions apparently not prohibited but which many still consider torture.

In fact, I daresay that the very point of the memo you're attacking is that it prohibited precisely and only "treatment or punishment that is prohibited by the Constitution, laws or treaties of the United States," at least according to perfectly reasonable interpretations and the statutory texts involved, but that people felt that that didn't go far enough.

A vague definition of torture can cause many problems. It creates a real possibility of people going over the line because there's no clear-cut place of where the line is. OTOH, a strict prescribed list of known tactics can be easily used by interiewees to avoid giving us information. If they know exactly what we're going to do, they don't have to be rattled.

I suspect that certain forms of persuasion, including moderate coercive measures like sleep deprivation, do indeed sometimes give good results. Otherwise there would be much less risk of them being used.

But please, those of you chiming in, I am interested in your opinion. Is making someone think that they might be drowing, but never putting them in real physical risk, torture? What about sleep deprivation of various lengths? Having to stand up for hours? Loud offensive music? Yelling at them harshly? I don't think it's possible to avoid torture without an idea of what it is.

Posted by: John Thacker at January 25, 2005 04:54 PM | Permalink to this comment Permalink

Eric-- we did "bore into" the treaties signed by the US and the rulings of the SCOTUS, and found that permanent damage was the legal standard. But that wasn't good enough for people. That's perfectly fine, but people need to clearly explain what they do and do not consider torture so that we can draw lines. Without lines, things will get out of hand.

Posted by: John Thacker at January 25, 2005 04:56 PM | Permalink to this comment Permalink

Greg:

My 2 cents come from inside the policy debate and actually trying to help interrogators on the ground understand where the bright line occurs.

First, I can assure you that very few people outside of the Beltway, if any, were aware of the Gonzalez memos and the policy debates taking place. All that the soldiers in the field had time to consume was the various policies being pushed by the Pentagon. Mackey's experiences are pretty typical in both Afghanistan and Iraq. There was no concerted effort to "torture". That being said, some soldiers weren't clear on where the boundaries were because of the failure of the law and policy to be consistent or clear. In Abu Ghraib, the problem had nothing to do with the Torture Convention -- no one was getting even near "severe mental or physical pain or suffering" (except for psychopaths like Graner and Fredericks, but they were operating under their own twisted authority). Rather, the problem was abuse -- inhumane and degrading treatment, and failure to report what the psychopaths were doing.

Is nakedness torture? Under the Torture Convention, probably not. Is it inhumane and degrading under the Geneva Conventions (either 3rd or 4th)? Of course. Are the non-contact use of dogs torture? Maybe. Abusive? Sure. But inhumane and degrading treatment does not necessarily equal torture. There are gradations in wrongfulness and on that continuum you have obviously allowable methods (direct questioning, withholding luxury items) and problematic methods (sleep adjustment, loud music) to abusive techniques (nakedness, use of dogs) to actual torture (beatings, pain-inducing).

The problem in Iraq was that CJTF-7 policies failed to articulate already-existing standards on abuse to the troops and where techniques fell on that continuum, and both the leaders and soldiers who screwed up and abused soldiers are now paying the price.

All of this discussion of torture is not helpful at the user level. There are not nor have there been (except maybe at the CIA and GITMO) any discussions of how to torture or whether we can torture among the interrogators I work with. That is not how we do business. Every interrogator will tell you that, except for the rare KSM or "ticking bomb" scenario, abusive and coercive interrogations yield little helpful information. Rather, interrogators need tools and clear guidance that allow them to manipulate and work with detainees towards getting them to release information without abusing them or humiliating them.

Second, how stupid are we that we will consider giving an Iraqi insurgent or Al Qaeda member US Constitutional rights? I appreciate Sen McCain's intent, but are we now going to read KSM his right to remain silent before questioning him? If he requests a lawyer, do we cease questioning? Maybe we should allow him to file a Section 1983 action against his interrogator if he feels he's being mistreated!

Of course, this means that such a law is superfluous. We have the Section 2340A, we have the Geneva Conventions, we have the UCMJ -- which covers military interrogators extraterrorially, we have MEJA, which applies the UCMJ to civilians accompanying the force (contractors, OGA) in deployed environments. We have enough laws to protect detainees and the ability to enforce them. The problem is implementation and oversight. Fix that, and you will avoid Abu Ghraibs. But for heaven's sake, no more legislation!

Finally (sorry for the long post), the key to defining torture probably lies somewhere between Yoo and McCain/ICRC. Yoo is too legalistic, while McCain is too unrealistic. Unfortunately, we've politicized the debate (thank you Senators Boxer and Dodd) to the point where rational discussion of what sort of treatment is appropriate and necessary cannot take place.

An anonymous Army officer

Posted by: JD at January 25, 2005 05:15 PM | Permalink to this comment Permalink

"Second, how stupid are we that we will consider giving an Iraqi insurgent or Al Qaeda member US Constitutional rights? I appreciate Sen McCain's intent, but are we now going to read KSM his right to remain silent before questioning him? If he requests a lawyer, do we cease questioning? Maybe we should allow him to file a Section 1983 action against his interrogator if he feels he's being mistreated!"

Define Iraqi insurgent, though ... how many Iraqis get rounded up and interrogated every week? How many of them are actual insurgents?

Posted by: praktike at January 25, 2005 05:59 PM | Permalink to this comment Permalink

2 small points to add to the debate.

What has defined the US and most of the Western world as being "above" or better than other nations??

To a large degree it our respect for Individual liberties, even for those who transgress against our communities - The right to fair legal trial, the right not to be subjected to Inhumane punishments etc.

Consistent use of Torture - particularly without the context of a specific and urgent threat - makes the US no better than the very nations she criticises - the Irans, the Syrias and North Koreas

Secondly, Torture is also notoriously ineffective. If torture genuinely produced hard and effective information then there wouldbe a lot less argument against using it. Generally speaking though the evidence is that Torture generally turns up a lot of false confessions, and limited useful intelligence. This is also important to note in the context of this debate.

Posted by: Aran B at January 25, 2005 08:03 PM | Permalink to this comment Permalink

So how does one go about humanely extracting information from someone when that person has no desire to talk? Is there a way to be "nice" in this situation and still get results? Did we not try saying "pretty please"?

Posted by: bigAL at January 25, 2005 08:40 PM | Permalink to this comment Permalink

John T,

Do you have a link to the "permanent damage" standard, or a formulation thereof? Thanks.

Posted by: Eric Martin at January 25, 2005 08:43 PM | Permalink to this comment Permalink

Jeez. Another thread about What is Torture? And it has produced the same circular thread as seen on many other blogs. Give it up, folks. How about a really productive thread on Darwin vs. the Bible?

Posted by: Jack Wayne at January 25, 2005 08:55 PM | Permalink to this comment Permalink

praktike:

I agree that we're sweeping up too many innocent people. However, its a long stretch to say that they should retain US Constitutional rights. Again, there are already rules in place that could be used, such as the Article 5 tribunal (not as a matter of right, but as a matter of policy). The Army has Detainee Review Boards in place to streamline separating the wheat from the chaff. However, once we find the wheat -- that is, those who have intelligence value -- they get interrogated (relatively) humanely and without humiliation.

Aran B:

Wherever did you get the idea that the US is engaged in the "Consistent use of Torture"? Outside of some British yobs who were released from GITMO and who most likely have ties to international terrorism or, at least, islamo-fascism, no one has provided credible evidence that the US has engaged in torture. Abusive policies? Maybe. Probably. Unpleasant interrogations? Sure. Torture? Not that I've seen (and I'm positive I've seen a lot more of what's going on than you). But you are right -- torture is ineffective -- that's why we don't use it.

We do protect individual liberties -- of people residing in the US. Iraq is a combat zone and soldiers are being killed by insurgents. That's why we apply the Laws of Armed Conflict, not the US Constitution. And when someone violates the LOAC through the violation of the basic human rights of detainees, we take action. This is what separates us from the rest. Graner and Fredericks are in jail. LTG Sanchez and COL Pappas' careers are probably finished. And where are the members of Al-Aqsa? Hamas? Syrian intelligence? Saudi and Iranian Prevention of Morals and Vice Squad Goons? Sen McCain's captors? Do not equivocate us with countries who make a mockery of laws and who institutionalize oppression.

JD

Posted by: JD at January 25, 2005 09:01 PM | Permalink to this comment Permalink

Did we not try saying "pretty please"?

I hope not. Sounds like torture to me - or at the least "cruel, inhumane or degrading treatment" (which, according to Greg, is the exact same thing as torture). Kind of like being forced to sit in a funny position or having to listen to the "meow, meow" commercial over and over.

Posted by: Al at January 25, 2005 09:12 PM | Permalink to this comment Permalink

Greg --

It's much more likely that interrogators will simply back off, asking name, rank, and serial number, under the Geneva Convention, and that's it. Then a bomb will go off, killing hundreds/thousands/millions of Americans, and it will later be determined that prisoner(s) knew enough to stop the attack but interrogators were not able to question them.

After a great many dead Americans are mourned, pretty much ALL prohibitions against torture will be ended, and the American public will simply not listen to anyone who complains about it. Which will be a tragedy.

The Constitution forbids cruel and unusual punishment, yet I have had to, as part of my job, work 36 hours straight, under a great deal of stress. Was that torture? Not IMHO. Military personnel right now often have to eat MREs instead of hot food for weeks on end. Sometimes months. Is that torture? Not to me. Prospective SEALs have to sit in cold water and endure morale-sapping cold for hours on end. Are we torturing them? Not IMHO. The History Channel ran a documentary on D-Day, one US Soldier recounted how he had helped interrogate a German prisoner. Another soldier shot between the guys legs, and the German pointed derisively down at the ground and said "Nicht hier. Hier" pointing at his forehead. Should we launch an investigation into "torture" now of the long dead German?

LA Times has a lengthy article about massive "torture" of US prisoners in Iraq outside Abu Graib and by Special Forces. The conclusion (carefully hidden at the end of the article) is that a. many Iraqis have alleged torture and demanded money, but when asked for proof/evidence have gone away; b. Iraqi security services and the Kurdish Peshmerga militias DO torture/mistreat prisoners, not a surprise; c. Special Forces were cleared when it was revealed that the torture of prisoners happened before the prisoners were turned over to them by idigenous forces; d. the ICRC, Amnesty, and Human Rights watch blame Iraqi torture squarely on the US.

I think JD is right; we have no clear rules, a lot of politics and game playing, and the net result will be I'm afraid a lot of CYA which will end in catastrophe and pretty much end any rational limitation on much of anything when it comes to prisoners.

Posted by: Jim Rockford at January 25, 2005 09:41 PM | Permalink to this comment Permalink

What is absolutely wrong with the statement, "I'd probably say that depriving someone of sleep for one day might not be torture — depriving someone for five days would be?"

Now, I have to guess from your outraged response that apparently depriving someone of sleep for one day is absolutely, positively torture in your mind. OK, fine. Please define what is and is not torture, giving examples of permissive and impermissive techniques, with emphasis on things that are barely over the line and just barely acceptable. That's the *only* way that the troops in the field will be able to consistently avoid going over your line. Without a clear demarcation from somewhere, things will happen.

I agree it's a mistake to try to figure out exactly what's allowed under treaties and then go right up to the limit. I'm certainly not solely concerned with what's legal; I'd like to avoid torture. But the only possible way to do that is to define what's unacceptable. The Constitution and the treaties we've signed are very vague on the matter. The Geneva Conventions prohibit certain additional measures against legitimate POWs-- which, as I'm sure you know, most of these prisoners don't count as due to, among other things, their targeting of civilians. But maybe we should abide by those heightened standards anyway. Please, by all means, let's have a reasoned debate on it. I'm sure that (nearly) everyone agrees that torture is bad, but disagrees about exactly where it starts. If we don't have a debate and clear rules, it will end up in catastrophe. Blindly attacking people merely for asking the question of where to draw the line is highly counterproductive, and likely in the long run to end up in MORE torture.

Posted by: John Thacker at January 25, 2005 10:32 PM | Permalink to this comment Permalink

I'm a little concerned that so much of the discussion of this question is taken up with theoretical issues of the "where do we draw the line" and "what about the ticking bomb?" type. These do not bear on the reason this situation has gotten to the point it has.

Fundamentally, this is a military and intelligence system that until three years and four months ago dealt with prisoners of any kind only occasionally, was then asked to extract intelligence from terror suspects picked up in Afghanistan, and later was tasked with managing vast numbers of detainees in Iraq. It is important what the rules are with respect to how these prisoners are to be treated, but it is much more important that rules having been laid down are followed up -- everyone charged with overseeing detainees and extracting intelligence from them has got to know what the rules are and know also that someone is watching to ensure they are being followed.

It is no more than common sense to expect that al Qaeda types picked up in Afghanistan should be interrogated differently than Iraqis picked up in a random sweep around Baghdad. The Iraqis are less likely to know things we need to know; the political damage to our cause if the wrong people are abused is likely to be much greater; American interrogators in Iraq are less likely even to know what questions to ask. But no bright line between the treatment these two respective groups of prisoners seems to have been drawn, at least not so all of the responsible military personnel understood where it was.

The Bush administration is not known for thoroughness -- oddly, this is the distinguishing characteristic of Bush's campaign organizations -- but rather for improvisation and a casual attitude toward implementing policies. I don't want to minimize the importance of defining torture or establishing minimum standards for treating prisoners, but even the best-conceived rules have to be put into practice. The most damaging abuses, especially the ones in Iraq, were the result of failure to see that this was done, and someone needs to be held accountable for that.

Incidentally -- and I apologize for introducing a different issue into this thread -- it might be a good idea to think about how American practice toward detainees has been influenced by the often appalling conditions in our own domestic prisons.

Posted by: Zathras at January 25, 2005 11:05 PM | Permalink to this comment Permalink

"The Constitution and the treaties we've signed are very vague on the matter. The Geneva Conventions prohibit certain additional measures against legitimate POWs-- which, as I'm sure you know, most of these prisoners don't count as due to, among other things, their targeting of civilians. But maybe we should abide by those heightened standards anyway."

John, the way the Geneva Conventions read, if they aren't POWs they're civilians and they get civilian guarantees instead of POW guarantees.

Basicly, if we follow the Geneva Conventions we signed for POWs or civilians either one, we don't touch the prisoners during interrogations etc. That mostly means no stress positions. If you tell somebody to stand in a stress position and all that happens if he doesn't is you don't give him cigarettes, it doesn't mean anything. The way you keep somebody from relaxing out of a stress position is you kick him until he climbs back in position. Unless of course you handcuff him in position so he severely damages himself when he finds himself hanging from the handcuffs.

Similarly, how do you force somebody to eat pork of stick his thumb in his anus and then lick it? You do it by kicking the sh*t out of him when he refuses. A whole lot of the doubtful cases disappear if you aren't allowed to kick prisoners. If you can't touch a prisoner then you can't tie him to a frame and dunk his head underwater.

What's left is mostly keeping him awake (where you aren't allowed to kick him awake) and exposing him to abusive music or sounds. These aren't specifically mentioned in the Geneva conventions. Also the russians found another loophole that we haven't been reported using: You are supposed to give prisoners adequate medical care. So if you have a dentist who looks over the prisoner's teeth and decides some of his fillings need to be replaced, and he does it without anesthetic.... I'm not sure exactly how they get started without violating the conventions but the prisoner has a strong incentive to hold still once the drill is actually in his mouth.

If you aren't allowed to prevent a prisoner from removing his earphones then you can only do the loud sounds torture by doing it to a whole room. Again, quite often even a restrained prisoner can find ways to dislodge earphones unless he knows he'll get a beating when he does. This is one gray area.

And if you aren't allowed to hit or shake prisoners then they're likely to sleep through a lot of noise etc. Sleep torture is hard in that case. But it's another gray area we could discuss. If we accept the Geneva Conventions most of the abuse we've been considering is all illegal. (Unless you accept the Bush administration's creative idea that there aren't just POWs and civilian prisoners but a third group too.) And even then most of the iraqi prisoners aren't in that third group.

The only punishments allowed for prisoners by the Geneva Conventions are increased detention time, and capital punishment. After a trial a prisoner can be executed. As I read it, it takes at least six months to go through the trial, appeal, and reporting-to-the-Red-Cross-etc process before you can kill him.

Also, we're obligated to provide a safe place for prisoners. Putting them in prisons that get shelled is not adequate. Of course we don't have any safe places in iraq, which is the one acceptable excuse to take iraqi prisoners out of iraq to kuwait etc.

We can legally repudiate the Geneva Conventions, but not before the end of hostilities. If we were to pull out of iraq, repudiate the Geneva Conventions, and a year later re-invade, then they wouldn't apply to us.

Posted by: J Thomas at January 26, 2005 01:04 AM | Permalink to this comment Permalink

I heard an interesting formula today:

Don't approve or authorize any interrogation technique that you wouldn't be willing to accept being used on our own men and women should they be detained.

Before I get flamed for this, it is just an idea that seemed interesting to me. And yes, I realize that our prisoners get treated far worse, and in many cases are murdered. Still, we should determine our standards based on our own moral imperatives, not those of terrorists and thugs.

Posted by: Eric Martin at January 26, 2005 01:11 AM | Permalink to this comment Permalink

Seems to me that if we are in a blazing hurry to get intel from some prisoner there's scopalamine and other kinds of babble-juice. For longer term stuff I seem to remember that the Chinese used very effective methods against US prisoners during the Korean conflict that did not involve anything remotely like torture. See Cialdini, "Influence".
In this regard, hat makes America stand out from other folks is that we are committed to a kinder gentler way of doing business. This is one of the things that makes us who we are. I understand Greg's repugnance of torture, to do as the "lesser breeds without the law" do is to become what they are. Which undermines our moral authority (such as it is) and degrades our sense of who we are as the people we want to be.

Just 2 cents.

Posted by: T. Leo Rugiens at January 26, 2005 01:26 AM | Permalink to this comment Permalink

I hear a lot of folks saying "torture doesn't work." Really? Says who? Are there any studies out there that demonstrate what techniques work as opposed to those that don't?

I'm no advocate of barbarity for the sake of barbarity - but choosing the saving (or even possible saving) of American (or allied) lives or the "torture" of terrorists is not a real hard decision for me to make and I can't help but wonder about folks who DO stay awake worrying about it.

Posted by: Bill at January 26, 2005 02:21 AM | Permalink to this comment Permalink

Bill, I haven't seen any academic studies about what interrogation methods work. The CIA publishes such things inhouse but I haven't read them. A collection of people who claim to be experts say it doesn't work. But then a collection of people claim to have made it work. This should be a less ambiguous matter than the claim that hypnosis can't make anybody do things that are against their moral principles, and then it gets argued that if they do it that means it must not be against their moral principles after all.

I've listened to people who do that sort of thing though I haven't done it myself, and here's my understanding of what they say:

1. Two classes of prisoners, those who'll say something and those who'll clam up and not say anything at all. If they refuse to say anything at all they can be persuaded to say something using either positive or negative reinforcement. Get them to talk about something -- anything -- and you have a start. If you torture them for not saying anything, they're likely to consider it a big defeat to say anything. It turns into a contest of wills at the start. So it's better to just do a little poking in the middle of other methods, keep them off balance and not sure what you'll do, and if possible get them interested in talking about something innocuous. If it's a contest of wills, every hour they say nothing is a victory for them and you feel like you're making no progress until they say something, so it's likely to be discouraging.

2. Prisoners who talk have an almost-infinite amount of garbage available to talk about. Ideally you want them to sort it out for you and tell you the things you're interested in. Drugs can eliminate their resistance to telling you stuff, but will also eliminate their ability to organise it for you. So if you know exactly what to ask, you can get something that way among a lot of garbage. It isn't a good way to get them to tell you things you don't already know to ask about. Similarly, if you get them exhausted enough and sleepless enough etc, you can basicly get them deranged to the point they lose all judgement and will tell you anything including whatever garbage they hallucinate. That can work if you already know precisely what to ask, just like the drugs.

3. If they're aware, they might tell you stuff for one reason or another, and they might lie. Ideally you'd like to know whether they're lying. Trained interrogators claim they can tell whether the interrogatee is thinking or remembering. If they just tell you what they remember without much thought then it's probably the truth.

Torture that doesn't reduce them to babbling might persuade some people to tell the truth. The ones it's especially good for are the ones who'd like to talk to you but who need a good excuse. If you torture them enough that they think it's a good excuse then they'll talk.

4. People who believe that you'll kill them after they've told you all you want to know, have an incentive not to talk. If you torture them to the point they want to die, then they may talk to get you to go ahead and kill them. But they may find some crafty way to kill themselves too. For example, in one russian prison each prisoner slept on a heavy oak shelf that was hinged to fold up against the wall. Suicidal prisoners found they could arrange things so the shelf would fall down and crush their skulls. In another prison the washbasins were a size and shape that let prisoners stick their heads in and slump to break their necks. Suicidal people can be very inventive.

5. Apparently people who did statistics found that they got results at least as often and as quickly by sitting the prisoner down and starting out "The war is over for you.". If the prisoner accepts that the war is over for him, he's likely to talk about old campaigns as if it's 10 years later and the war is over and he's talking with a veteran from the other side. He might avoid recent stuff and stuff he thinks would help get people caught, but he might slip up and the old stuff is useful too. Torture on average does no better and typically worse. But people who believe in torture only count the successes.

I can't quote you the studies but it makes sense to me, and I hope the way I described it makes sense to you too.

There's another issue. Whatever you do, word will get out to the enemy and also to the civilians. Possibly you can arrange that tortured prisoners get kept in solitary and nobody ever sees them before they're dead and buried, but *that* will get out too. What effect will torture have on the ones who haven't been caught? When I was a boy scout the scoutmaster was an old man who'd fought in korea. Once he started to talk about it, and then he remembered some things he didn't want to talk about and he said "If you're fighting the reds, whatever you do don't let them take you alive.". If I ever fought the reds I'd have followed his advice.

People who absolutely refuse to surrender even when they can't get away are a lot more trouble than people who'll surrender. They're likely to try to sucker some of you in close so they can take you with them. So you stand back and blow it up first, and you have a big mess -- when if they thought you'd treat them right and it would just be "The war is over for you" they'd surrender and maybe you'd have a building still standing and civilians alive and so on.

There was a time we said we were going to "kill or capture" Muqtada al Sadr, after Abu Ghraib had gotten publicised. What's the chance he'd surrender even if we had him surrounded? And yet if he thought we were honestly interested in giving him a fair trial for a crime he knew he was innocent of, he might possibly have set a good example and turned himself in.

Torture has to give results a *lot* better if it's going to balance out the problems it causes. Some experts say the statistics show it doesn't, that for a good interrogator it's no better than just talking , but I haven't heard of them making their data public.

Posted by: J Thomas at January 26, 2005 03:30 AM | Permalink to this comment Permalink

Re J Thomas's last post: I wonder how effective saying "the war is over for you" can be if the enemy thinks of the war as jihad. In theory, I would think a jihadist would never accept that the war is over, but it would be interesting to see how it played out in practice.

Posted by: Alex at January 26, 2005 05:30 AM | Permalink to this comment Permalink

I'm against torture (kinda) in any situation Greg, but what do we do with captured al queda suspects? What's your plan or technique to extract valuable information from High Value al queda terrorists? how do we get information from those terrorist scums who we know has valuable info but won't talk?

I think this topic on alternative methods deserves more attention, IMO.

btw, do you guys remember how the philippine authorities got some al queda suspects to confess re "oplan bojinka" and re ramzi yousef, mastermind of the first WTC attack?

Posted by: john marzan at January 26, 2005 06:42 AM | Permalink to this comment Permalink

Let's review the bidding. Torture can have multiple purposes.

It can get information.
It can get confessions, real or false.
It can get revenge.
It can improve the torturer's self-image.

If you already think you know what's going on and you want a prisoner to confirm it, you can eventually get any prisoner to confirm it whether he knows anything or not. He'll eventually figure out what you want him to say. Unless he suicides, he'll eventually confess and tell you just what you want him to.

And if you think you shouldn't torture the innocent and you've already started torturing somebody, eventually you can get him to confess which justifies the torture. This was a big deal for the soviets. When they got a confession that validated the arrest and the torture, and it made the trial a lot simpler. It didn't matter whether the information was correct or not.

If you care about getting information, you need to try out a variety of methods a statistically-significant number of times and then verify how good and how timely the information is each time, and do statistics. The CIA has done this but they haven't published the results in the open literature. A collection of CIA agents have said that torture doesn't work well for getting information. But wasn't it the CIA that was training the Shah's secret police to torture, and the Korean CIA, and Piinochet's secret police, and so on? Yes, but it was some time ago, and it isn't clear how much the CIA actually trained them versus how much they told us what worked for them, and maybe the purpose wasn't to collect information.

It doesn't really make sense for amateurs to decide we need to use torture. The rationale for doing it is like this: The current crisis is *special*. So we have to do *whatever it takes*. We can't afford to be nice guys, we have to prove we're tough enough to win.

Among civilians who don't have any basis to decide what works, the argument is between nice people who say we should be nice no matter what, versus mean people who say we should be mean so we can win, since nice guys don't win.

If there was any reason to think we could win the war easier by using poison gas on iraqi cities, the nice guys would say no and the mean guys would say it's the best way to win. That one hasn't come up yet. But there is a large minority of americans who're already arguing that we should nuke all the muslims. "It's the way to win. It's the only way to be *sure*." Is there any reason to believe we'd actually be better off if we nuked all the muslims, or even just all the arabs? Well, but that isn't the issue. The issue is whether you're a nice-guy loser or a mean-guy winner. Proving you're a manly man who can make the hard choices has nothing to do with which military strategy will actually work.

There are a variety of interrogation methods that work sometimes, and nothing works all the time. The one I like best is the troll. You start an argument with the jihadist, and you fumble with it and let him come out ahead the first time. You sort of shuffle and look away and change the subject. Then you start arguing about how your side is going to win and there's nothing they can do about it. Just like a blogging troll. A lot of times he'll get caught up in arguing that his side is winning and will win, and he'll tell you all sorts of stuff to prove it. It's hard to believe it works on jihadists, but look how well it works on bloggers. People that you'd think would know how to ignore a troll get in long complicated arguments to no purpose at all. It's insidious.

Posted by: J Thomas at January 26, 2005 03:45 PM | Permalink to this comment Permalink

JD...

I was goign to tell you to pull your head out of your ass but then thought better of it.

You've simply mistaken what I said. I at no point made the comment that the US was consistently using torture. I was merely pointing out some of the issues/arguments that consistent use of torture, may throw up for the US and allies in Iraq.

In the context of the legal manouevering by Gonzales, and supported by Yoo as per the article above, I was making the point that to step in that direction makes the US no better than Syria and the like. I also wanted to make the point that in what I have read a number of experts beleive Torture to be relatively ineffectual for gaining useful intelligence - theeby making the point that its usefulness does not, in my view, make it worth the negative issues it brings about.

Mind you the US is already half way thre anyway. Gitmo is a disgrace, regardless of whether they are Islamo-facists (a label I see you are fond of using and one which reeks of onservative medie fear mongering I might add). Imprisoning people without trial for years is EXACTLY the sort of behaviour that the Syria's and Iran's of this world engage in.

Whilst New Zealand has fortunately not been a direct victim of terrorist atrocities, we have still had our Citizens killed in the Bali bombings and the like too. But that still doesn't in my opinion make it right to engage in the behaviours that the Bush Administration is engaging in, in the name of the WOT. Otherwise we are no better than the "islamo-fascists" ourselves.

Posted by: Aran B at January 26, 2005 08:04 PM | Permalink to this comment Permalink

JD,

You say that there has not been any credible evidence of torture outside of five cases from GITMO, but what about the evidence compiled in investigating Abu Ghraib and the Schlesinger group?

Those Army reports, and government documents (many of which are compiled in Danner's book Torture and Truth), detail incidents including the following activities:

Persistent vicious beatings, severe burns, electrical shocks, strangulation, asphixyation, sodomy, sexual abuse, possibly rape, and at least five deaths that the Schlesinger report said resulted from the beatings administered, with 23 or more to be investigated.

Are you aware of these reports or are you challenging the validity of them? I think it's safe to say from your comments, that you would consider the actions listed as "torture."

Here is a pdf file of the Criminal Investigation Division's report which includes accounts of severe beatings and sodomy with a police baton (Danner also includes a copy of said report in his book):

http://www.publicintegrity.org/docs/AbuGhraib/Abu11.pdf

"On another occasion DETAINEE-07 was forced to lie down while M.P.'s jumped onto his back and legs. He was beaten with a broom and a chemical light was broken and poured over his body.... During this abuse a police stick was used to sodomize DETAINEE-07 and two female M.P.'s were hitting him, throwing a ball at his penis, and taking photographs."

Posted by: Eric Martin at January 26, 2005 10:19 PM | Permalink to this comment Permalink

nobody really wants to talk seriously about alternative methods to get info from hardened al queda suspects, because I think nobody really wants their ideas to be laughed at.

Understandable. I guess we'll all have to be satisfied with "name, rank and serial no." from now on.

I'm not saying torture is right, but it is disturbing to see the lack of credible alternatives being presented re how to get more valuable info from the cold blooded terrorists.

besides, once that first nuke is detonated in NYC, this debate will be over, whether i like it or not.

Posted by: john marzan at January 27, 2005 03:43 AM | Permalink to this comment Permalink

Aran B --

The reporting on Gitmo has been a disgrace. Not the place itself. The Wall Street Journal just had a piece on what's been going on there. It's the usual same old, nobody had any clear guidelines about what could be done, and what could not be done. Most of all, rather than out-of-control abuse, beaurocratic bungling and CYA seems the rule.

Saudi National Mohammed al Qahtani, suspected of being the "20th hijacker" who was refused entry into the US in Aug 2001 and picked up on the Afghan-Paki border pretty much exemplifies Gitmo. Interrogators tried to build "rapport" with him with zero success. Things were kicked ALL the way up to Rumsfeld, and 20 hour interrogations with loud music, a spotlight to disorient him went on for 42 days until he broke and provided details about Al Qaeda's inner workings. He is now awaiting military trial. Another detainee questioned in this manner by Rumsfeld's personal approval provided additional information.

In the meantime, Military Commanders who dual command of Gitmo for almost a year fought over how to question detainees early on; one desired Geneva Conventions "Name, rank, serial number only" while the other wanted more aggressive questioning. Miller replaced them, kicking requests for aggressive questioning all the way up to Rumsfeld as described above.

Many of the Gitmo prisoners were very sick with TB and frostbite, many were already mentally ill or irrational, the base had very little facilities to hold them; stuff had to built almost on the fly.

Meanwhile the detainee's lawyers were suing, and of course repeating the detainee's tales of abuse (which may or may not be true; think Lawyer Mark Geragos repeating Scott Peterson's claims about fishing). Civilian NCIS Psychologist Michael Gelles argued for building "rapport" with the prisoners, which had Miller argued already failed with Qahtani. Gelles got his concerns kicked all the way up to Rumsfeld, who six weeks after approving the aggressive questioning of the two prisoners, rescinded the approvals and issued much more restrictive guidelines.

In the same token, a civilian contractor walked into FBI regional offices in Southern California, and alleged abuse including shackling prisoners for extended periods, subjecting them to extremes of heat and cold, introducing dogs into interrogations, putting a lit cigarette into a detainees ear, and putting an Israeli flag around a detainee. These allegations by the unamed civilian were sent to FBI interrogators who had worked at Gitmo and published by the ACLU after a FOIA lawsuit.

Finally, no one is willing to sign off on releasing prisoners. About 200 had been released, and more than a dozen of these went right back to fighting for Al Qaeda. Some can't be released, Gitmo has 12 Uighurs who if sent back to China would be summarily executed. No one is really sure who the prisoners are, some might be innocent and others might be hard core Al Qaeda fighters. Release requires approval from the Pentagon, State Department, CIA, and FBI.

So yes, Gitmo is a mess, but not in the way people think. It's more beaurocracy gone wild than anything else, and it's important to remember that allegations of abuse are coming from one civilian employee (NOT the FBI as shoddily reported); released prisoners in foreign countries suing the US in their local courts; and prisoner's lawyers. But hey, if you want to believe OJ is really searching for the real killer at every golf course, go ahead.

It's easy to criticize in New Zealand, when the likelihood of attack is nil and the country can free ride on American protection and defense. EVERY American in a major city is in the front lines, as John Marzan points out, the first nuke in NYC and the debate is over.

Posted by: Jim Rockford at January 27, 2005 04:26 AM | Permalink to this comment Permalink

it's interesting that the future 08 prez candidate hillary clinton is "quiet" on the torture issue and the abu ghraib scandal.

http://www.google.com.ph/search?num=20&hl=en&safe=off&q=site%3Aclinton.senate.gov+abu+ghraib&meta=

http://www.google.com.ph/search?num=20&hl=en&safe=off&q=site%3Aclinton.senate.gov+torture&btnG=Search&meta=

The MSM should definitely ask her (the sooner the better) if she's for or against torture. ;)


Posted by: john marzan at January 27, 2005 04:29 AM | Permalink to this comment Permalink

Edit. The MSM should definitely ask Hillary (the sooner the better) on her views on torture and Abu Ghraib.

I'd prefer her to answer in detail, rather than just simple yes or no.


Posted by: john marzan at January 27, 2005 04:41 AM | Permalink to this comment Permalink

Eric:

I've read every report, including some that you probably don't have access to. In every one I have seen behavior that is criminal and abusive -- even torture. However, those individuals committing those offenses were not part of any master plan to get information out the detainees. There is no evidence of any authorization by anyone in authority to commit those offenses. It is clear that the MPs did not have control over some of their soldiers and that they suffered from poor leadership. However, what happened to detainees like DETAINEE-07 has never been part of some plan to authorize abusive behavior as a part of interrogations. In fact everything you list (which I agree that if it were committed in the course of an interrogation would be torture -- please don't try to define my position on torture without checking first) was unauthorized conduct and would subject the abuser to criminal penalties. We should be shocked, but that doesn't mean that the military is doing this as a matter of course or that we need more laws and policy. What we need is more local accountability and oversight.

Of course, the left and anti-US moonbats can't let the facts get in the way of reality. Reality is that 1) CJTF-7 developed poor policy guidance; 2) Interrogation facility leadership was weak and mis-interpreted the policy; 3) MP leadership was non-existent; and 4) Included among the MPs was a couple of sadistic individuals who set the environment for abuse. AG isn't Rumsfeld's fault (except for the fact that he failed to provide enough troops overall, leading to stress and fatigue on the ground), isn't Rice's fault, isn't Gonzlez's fault, and isn't Bush's fault. It's Karpinski's fault, Sanchez's fault, Pappas' fault, Graner's fault, and Frederick's fault. Once these failures were identified by a whistleblower, the process did the right thing -- it investigated and prosecuted those responsible. The process is still taking place.

Aran B: I reread your post and see how I misread what you said -- I have disengaged my head from my ass and am driving on. However, I agree with Rockford -- if you're getting your GITMO information from the press, you are not getting the real story. Most of what takes place at GITMO is classified, so the only other source of activities is what comes from those who are released -- obviously they have no motive to lie or make the US look bad! On the other hand, Congress gets briefed and the ICRC makes visits -- and outside of normal ICRC complaints (which, again, are supposed to be held confidential) nothing egregious. There are FBI complaints, but its not clear if what they saw was an authorized technique or interrogators pushing too far past the envelope.

BTW, Eric you'd be amazed at what I tell the interrogators I work with constitutes torture and abusive behavior and where I think the line between right and wrong lies (definitely not where Yoo and Bybee might think it lies). However, I'm not going to sit here and let the misinformed (Dem Senators, the MSM, and some on this post) mischaracterize what is taking place and what the policies of the US Government are.

JD

Posted by: JD at January 27, 2005 10:37 AM | Permalink to this comment Permalink

For everyone's edification, here's the results of assaults used to elicit information vs. MP assaults-for-the-sake-of-assault taken from the Fay Report:

First off, I consider MP abuses to be mere abuse (whether the detainee is Iraqi or a US soldier they have in custody) and MI abuses in the course of interrogations to be torture (because it is the fact that you're using pain and suffering to get information that defines torture). So let's look at the Fay Report to see the score for MP v. MI physical and sexual assaults (There are other categories, as well, such as nudity, use of dogs, and use of the "Hole" -- they have similar results) (incidents are listed in chronological order):

Incident 1: MI assault, but determined to have been staged to protect detainee

Incident 2: MI sexual assault: committed as part of an unauthorized interrogation -- soldier punished

Incident 43: MP assault

Incident 8: MP sexual and physical assault

Incident 9: MP assault

Incident 3: MP sexual and physical assault. MI soldiers observed, but weren't part of MI operations

Incident 38: MP sexual assault

Incident 5: MP sexual and physical assault

Incident 21: MP assault

Incident 10: MP assault

Incident 11: MP sexual and physical assault

Incident 4: MP assault -- may have been due to MI directive

Incident 6: MP assault

Incident 14: MP assault

Incident 23: MP assault

Incident 15: MP assault at directive of contract interrogator

Incident 24: MI assault -- use of stress position

Incident 18: MP assault

Incident 27: MP assault

Incident 22: MI assault -- rape by an translator, not related to MI operations

Incident 16: MI assault -- incident was reported to CID, but not pursued.

The score: the overwhelming number of assault incidents at Abu Ghraib were the result of normal criminal conduct, not as a part of a pattern of any policy of torture or policy that "the gloves come off" when eliciting information from detainees.

Posted by: JD at January 27, 2005 10:42 AM | Permalink to this comment Permalink

JD, this is what happens when we get extreme secrecy.

People naturally assume that the secrecy covers up an efficient brutal torture machine, when actually it covers up utter incompetence.

Civilians listened to the propaganda -- "We're going to take the gloves off" etc and assumed it meant something. But now we hear that it didn't mean anything and had no relationship to policy at all. And officers who took initiative and acted without clear orders will be punished whether they got results or not.

Since that it's turned into a scandal evrybody involved will be jumping for evidence that they were trying to do the right thing -- what third parties later decide was right -- and the ones who are in a position to falsify records will have a giant advantage. In short, business as usual in a giant bureaucracy. Our tax dollars at work.

Was there actually a policy in place? You'll never pin it on the top guys, the ones who can do politics. Certainly not on Bush or Cheney or Rumsfeld. Not Wolfowitz or Feith. It's guys who don't have enough connections who'll lose their careers over it.

Pathetic. These are the guys we want to fight pre-emptive wars? These are who we depend on to keep nukes out of NYC? Maybe we'd do better to try a foreign policy of avoiding entanglements and trying not to make anybody mad at us. And then fight when we abosolutely have to.

Posted by: J Thomas at January 27, 2005 11:13 AM | Permalink to this comment Permalink

JD,

I've never said that any of this behavior was part of any master plan. I don't think you can deduce that from anything I have written on this site or elsewhere. I think that most of the factors you listed are accurate desccriptions of the problem, although I am not so certain that some of the legal wranglings at the top didn't filter down to lower levels at least in some regard (I refer to certain e-mails and documents passed between officers that Danner compiled in his book which seem to suggest confusion as to legal standards). Especially if there was some type of migration from tactics used against al-Qaeda by CIA in limited contexts, to military detention centers in a broader sense.

Still, these could have been corrected with better oversight and some of the other measures you listed.

And JD, I did not try to define your position on torture, nor do I think I would be "amazed" at what you tell interrogators in terms of what behavior is acceptable. If you think that I was in some way suggesting that you had an expansive view of torture, than I think you misinterpreted me.

On the contrary, I was saying that based on what I read of yours, it would seem that you WOULD consider the acts I listed torture (which you confirmed in your post) - but I couched that in uncertain terms, not "defining" anything. I was giving you the benefit of the doubt, and then some, not impugning your motives.

Beyond that, I question to what extent those responsible are being punished appropriately. You yourself accorded blame for AG (just one site, there was abuse and torture at others in Iraq and elsewhere in Afghanistan) on the following:

"It's Karpinski's fault, Sanchez's fault, Pappas' fault, Graner's fault, and Frederick's fault."

But what has happened to Sanchez? Pappas? Karpinski? Some might not experience the same level of career advancement, but has anything more serious been meted out (I honestly don't know so I am asking)?

Then, what of all the other incidents not stemming from those 7 soldiers being court martialed? Are there any other more senior ranks involved? Are all really being prosecuted?

On laws and policy: applying the McCain-Lieberman standard would not require new laws necessarily, just an application of existing ones. And the Constitutional reference in the McCain-Lieberman standard would not require the use of Miranda rights, or the granting of an attorney. Those Constitutional protections are not part of the "torture or cruel, inhumane or degrading treatment or punishment that is prohibited by the Constitution." It doesn't appear that McCain-Lieberman would grant the full complement of Constitutional rights, just the ones that affect cruel and inhumane treatment (regardless of whether or not that is a good standard, I thought it would be wise to note its parameters).

Posted by: Eric Martin at January 27, 2005 03:32 PM | Permalink to this comment Permalink

Perhaps I misunderstood your earlier post:

Were you saying that those five British detainees were tortured under official authorization? And that this can be distinguished from un-authorized torture?

That would make my point about additional cases of torture moot if you are saying those were unauthorized, and that might have created the impression that I was suggesting that all torture was authorized.

Maybe that is where our signals got crossed.

Posted by: Eric Martin at January 27, 2005 03:45 PM | Permalink to this comment Permalink

Jim:

NZ has made its fair contribution to the WOT. We are certainly not free riding on the coat tails of the US. Yes we are a much less likely target - but if you ask yourself why its kind of obvious. We haven't been involved in the behind the scenes manipulation that has characterised a lot of US involvement in the Middle East.

You reap what you sow, and unfortunately much of this conflict stems back to American interference in the region over the past 50 or so years - driven largely by fear over the security of the supply of oil. Unfortunately, "our" generation is the one inheriting the legacy of the previous generation's manipulation.

I am critical of America - but largely as a response to the one eyed view of so many Americans I meet who are unwilling or unable to take a step back and admit that the roots of this conflict are in no small part due to the US (and to a lesser degree other western nations) and her meddling in the region. I understand why that meddling came about, but now we are seeing the consequences.

Don't get me wrong - I am no Islamic fundamentalist sympathiser. In fact i think Fundamentalist Islam is one of the most oppressive and disgusting of all the fundamental religions (and all religious fundamentalism IMO is a cancer on society). So I do support the War on Terror, although I still feel the US is taking some bad options and making things worse not better - at the moment.

But the same time I get frustrated by the simplistic view of many Americans - the whole "their bad and we're good" viewpoint. Because when you scratch a bit deeper no one comes out clean...

Does this make things a bit clearer as to why I adopt my stance??

Posted by: Aran B at January 27, 2005 10:19 PM | Permalink to this comment Permalink

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While this may not sound like a 9-year-old's typical birthday wish list, it was exactly what Jenna wanted.
Taken from http://www.newszap.com/articles/2005/01/02/dm/sussex_county/dsn04.txt
For information on gift for dog lovers or gift for your dog, you may go to http://www.doggift.mypetdogs.com

Posted by: special dog gift at January 28, 2005 05:34 AM | Permalink to this comment Permalink

A few points:

Torture as a law enforcement tool is useless - eventually, anyone will confess to anything to make the pain stop - and the torturee already knows exactly what answer the torturer is seeking ("I'm guilty").

Torturing someone to reveal the location of a safe house is a bit different, because it can be independently verified - Special Forces raid the house - if it's filled with Jihadis and Semtex, then torture worked in that case. Or if its filled with geraniums, then torture did not work. Moreover, the torturee KNOWS that the results can be verified, and the torture redoubled if he lies. This is totally seperate from the moral issue, but I think goes to answer the proposition that "torture doesn't work" - I think that in certain cases it can - whether it is worth the cost is another question.

On the issue of torture warrants etc, I cannot think that they'd be a good idea. IF torture is to be used in the "ticking bomb" scenario, let it be done sub rosa. This is such a rare instance that it is not at all worth changing our legal norms - if it is done, then either it remains quiet or the torturer takes one for the team, to be pardonned at a later date.

On the definition of torture, I would say that techniques regualrly used in military basic training in NATO armies should not be considered torture. This would include mild to moderate sleep deprivation, yelling, uncomfortable positions (in moderation), some mind-games and reduced rations (within safe medical limits). Anything that goes beyond that is at least abuse (illegal) and is probably torture, and legality aside, it is not worth tarnishing our national soul. We don't need to go there.

Posted by: holdfast at January 31, 2005 04:13 AM | Permalink to this comment Permalink
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