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There won’t be an investigation for torture.
WASHINGTON (CNN) — Attorney General Michael Mukasey told lawmakers Thursday he will not open a criminal investigation into the CIA’s acknowledged use of “waterboarding” on terror suspects.House Judiciary Committee Chairman John Conyers asked Mukasey bluntly whether he was starting a criminal investigation since CIA chief Michael Hayden has confirmed the use of waterboarding.
“No, I am not, for this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then,” he said.
Mukasey said opening an investigation would send a message that Justice Department opinions are subject to change.
“Essentially it would tell people, ‘You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigations … if the tenure of the person who wrote the opinion changes or indeed the political winds change,’” he said. “And that’s not something that I think would be appropriate and it’s not something I will do.”
So .. how about an investigation of the people who gave that opinion? Of the people who claimed that torture is legal? You want to let the folks who followed the orders go free, fine. But the people who gave the orders should be standing in front of the bar explaining themselves.
“Essentially it would tell people, ‘You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigations … i
So on the flip side, if the DOJ said that, oh, say, breaking into the Watergate hotel stealing Democratic Party information, and bugging Howard Dean's office was legal, there would be no investigation?
Where do we draw the line?
Nice when you are your own judge and jury. And god is on your side.
Isn't this the regime that's all about accountability?
But Jim, that would violate executive privilege. And then presidential appointees might be dissuaded from advocating immoral, un-american and/or illegal policies. And if they do argue for such policies they might be discovered and prosecuted, or at least shunned by all right-thinking people.
And what a horrible result that would be.
It's the job of the legislature to keep tabs on the executive. They ain't doin' it.
Pardon my ignorance, but can't the House open an investigation on their own? Not that it would get very far without Justice Department cooperation, granted. But that doesn't mean it's not worth doing.
The House (and the Senate, for that matter) can certainly hold hearings and subpoena people. They can't convict and imprison people. How far it would get without Justice Department support is not clear.
Although, if memory serves, who said torture was OK is well documented. (There were several signed memos from White House and Justice lawyers).
I believe it's spelled "Mucousey."
As in a slimy discharge.
I am so totally pissed at the senate. How could they not know that everyone that Bush nominates would be a ass-covering compliant too?
Annalee, not only can the House (or Senate) open an investigation, they can hold people who don't respond to their subpoenas in contempt and, if the Justice Department refuses to enforce the contempt citation, the House's Seargent-at-Arms can take them into custody, though I'm not sure that's ever been done. In summary, Congress has the authority, if it chooses to exercise it.
Not unexpected. And slimy. Are there explicit opinions from DOJ that authorized this? If not, it's Nuremberg all over again ("I was only following orders" is not an adequate defense).
The people who gave the orders should be standing in front of the bar explaining themselves.
We all know (because they told us so in March 2000) that the adults are in charge. But that's okay, adults never apologise or admit they've done anything wrong.
“Essentially it would tell people, ‘You rely on a Justice Department opinion as part of a program, then you will be subject to criminal investigations...
And why is there a problem with this?
If the orders are illegal, and you follow them, you're doing something illegal, and subject to criminal investigation. It seems straightforward enough.
Other than to join in the chorus of disgust, I have nothing in particular to add, save to say that Charlie's succinct allegory @ #11 above perfectly describes the paternalistic condescension that this administration has reveled in from day one. That a sizable part of our population finds that attitude appealing is really where the root of many of our problems lie, IMO...
#7 ::: Chris Gerrib ::: (view all by) ::: February 07, 2008, 04:47 PM:
The House (and the Senate, for that matter) can certainly hold hearings and subpoena people. They can't convict and imprison people. How far it would get without Justice Department support is not clear.
Wrong -- the House can impeach ANY official of the Executive Branch. Last time I looked everyone working for the CIA, Dept. of Justice, et alia is a member of said Branch. Also, both the House and Senate can send their respective Sergeants-at-Arms to arrest anyone subpoena'd who fails to appear...
Impeachment and conviction by the Senate does carry penalties, and IIRC does not preclude criminal or civil suits afterwards. (People damaged by the actions of those impeached could sue.)
I'd been thinking about the whole issue of torture today. I was going to write up my thoughts on it, and I probably still will (maybe, I have a project eating my brain a lot at the moment).
Reading through the comments here I was struck -- like the proverbial bolt from the blue -- of course Mukasey wasn't going to say that his bosses' use of torture was bad. After all, those people use torture.
And thus its effectiveness as a deterrent is illustrated.
In related news, I believe the Senate is still considering amendments to the FISA law. Among other things, this involves granting retroactive immunity to telecom companies which assisted in massive, apparently illegal, government surveillance.
Republicans have released a Youtube video to pressure Democratic Senators. Unsettling quote (my emphasis added):
“If Senators Reid, Clinton, Obama and their Democrat colleagues do not make the FISA updates permanent, they’ll deny intelligence and law enforcement communities the tools they need to protect Americans from foreign terrorists. After all, the terrorist threat to America never expires.”
#10: You're right, I think. IANAL, but it _is_ Nuremberg all over again. Following orders is no excuse for violating human rights and common law. No matter the circumstances, anyone would rule waterboarding a violation of a person's basic human rights (if I just waterboarded some random person, it would obviously be illegal). If that violation is carried out by an individual, then it's a criminal matter. If it's carried out by a person on behalf of an organisation (acting under orders), it's still a criminal matter, but the person who authorised the actions is also accountable.
And the authoriser is (or should be) accountable even though the laws of the country he is in authorises the action. Certain basic things are always illegal, no matter the legal situation. That's what human rights and common law means. The Serbs at Srebenica could've had the most rigorously justified legal system making the genocide legal, it still wouldn't be. The soldiers would still have been morally compelled to not participate in the slaughter of an ethnic group, and the people who ordered it would have been compelled not to do so. I believe that torture and organised violence against prisoners falls under that category. Oh, hey, look. It does.
Too bad we don't have an international court.
There is an International Criminal Court.
The Excited States has just chosen not to participate in it.
Wonder why.
Annalie, Chris, and Randolph:
The courts have held that Congress has an inherent power to compel compliance with its orders through finding offenders in civil contempt. At that point, they can be taken into custody by the Sergeant-at-Arms, and held until they agree to comply. While in theory they would be held somewhere at the Capitol, or more likely dropped off at the DC central jail to be held under order of Congress. And the courts have also held that the President has no pardon power over civil contempt of Congress.
Normally, that is not done now -- the standard practice is a referral to DoJ. But the rules are still on the books, and IIRC were used as recently as the 1930's. DoJ lawyers often opine that inherent contempt is no longer a practical concept. The Congressional Research Service disagrees.
I think that there would be some separation of powers issues if the Sergeant-at-Arms tried to arrest a public official at their office. But it should not be impossible to find out their home address . . .
Bill @ 17
There's absolutely nothing in the FISA bill currently before Congress (or the previous version) that said they couldn't listen in on terrorists. What they're afraid of is that they'll actually have to get warrants and explain to the court why they're listening to American citizens in the US (as well as abroad) - they can't do that without admitting they really are breaking the laws and violating the 4th amendment from here to Alpha Centauri and back..
If it were anywhere else, Bush and Co would be demanding the power to send the army in to restore democracy ...
There was a time when Michael Mukasey had a reputation as a fair jurist. Conservative, but reasonable. Watching his performance as AG, I have to wonder: How much did they pay him? or is it just that *all* conservatives are evil?
mjfgates @ #23, "*all* conservatives are evil?"
Yes. Now. The moderates were taken out and metaphorically shot during the 1990s.
A week or two back, Bill Moyers interviewed on his show a working class couple who'd run into problems. Lost jobs, health care woes. Maybe an endangered house, I forget.
But they were voting Republican because liberals support killing little unborn babies.
F&%$ these people. I've run out of patience, sympathy, and understanding. Their ignorant credulence, their dumbfuck hick apprehension that a guy they think would have a beer with plain folk like them would be a good leader enabled the bastards in the administration. And they'll fall for it again in November. Screw them. Let their houses be taken. Let their youth die in Iran. Let their public schools turn into abysmal holding pens for the kids whose parents can't afford a private academy. Let their bodies rot from pollution from the unregulated dump down the road. May their old age by one of miserable deprivation and instability because they believed it when President McCain told them Social Security was a bad investment for them. They deserve it all, for handing over our republic to scumbags.
The solution is for the legislative branch to impeach but they refuse to live up to their oath of office. Our solution then is for States Attorneys General to draft letters of indictment for Speaker Pelosi and Reid. I highly doubt that will happen.
My personal opinion is that we no longer have a democracy. We have a Soviet style Duma one party rule, the Corporate Party. Not by any means as extreme but similar in most respects. It seems to be the 21st century's preferred form of government. I don't see one election changing that.
Dude, that's my house, my schools, my air and my water too. And my old age.
The Republicans don't get to reap what they sow without the whirlwind taking everyone else along with them.
annalee #6: Pardon my ignorance, but can't the House open an investigation on their own?
Sure they can. But Pelosi's House has a vested interest in not doing that. They're all fucking complicit.
There will be no investigation into the crimes of the people who gave the orders to kidnap and torture in the name of America. They are presumed to have acted in good faith— a presumption that cannot be questioned in what passes for our so-called "civil" discourse, in which all of us participate— therefore, no one will be held accountable for these abominations. There is no stomach for it among the ruling elite, i.e. the only people who can do it. There isn't even an overwhelming consensus among the larger electorate. It will never happen.
Maybe, if we just vote the bastards out of office, then we can forget about all of it from top to bottom, right? No need for any Truth and Reconciliation commissions. We can just bury all the corpses, pave over their graves with fresh asphalt, and build playgrounds for tomorrow's children on top of them*. Just pretend like nothing ever went wrong, and it will all blow over when practically everyone is too young to remember it first hand.
That. Is. The. Plan. We're all a part of it.
* I'm building one now.
j h woodyatt @29:I'm building one now.
There aren't corpses under it, are there?*
* (swooping back under my Buffy-watching rock now)
Misjudgment in Washington--aka abomination of justice, aka miscarriage of justice.
When in the course of human events it becomes necessary....
Well, let's see. All three leading presidential candidates are members of Congress. Moreover, whoever among them wins the election will also run the Justice Department come 2009. And I don't believe there's a statute of limitations on prosecuting torture (and in any case most statutes of limitation for serious crimes run at least a few years, well past the next Inauguration Day.)
So I for one would really like each of them to answer the question "What will you do, as a Senator and as a President, to investigate and prosecute those who have authorized waterboarding and other methods of torture?"
All three claim to be against torture. But it would be interesting to see how they answer this question.
Stefan at 25: What James said.
Though I do know how you feel...
pericat asks: "There aren't corpses under it, are there?*"
How should I know? It was already paved over with fresh asphalt when I got there.
#29 ::: j h woodyatt
That honestly seems to me like the only way forward. to me, at least for now. If I had a magic time machine I would go back in time and change things. A little change here, another there. That is a fantasy. What I can do though is to clean my own corner of the universe. I can work for change, bit by bit.
Isn't Mukasey's argument perilously close to offering DOJ employees a Nuremberg defense ("I was only following orders")? Under Principle 1 of the Nuremberg Principles ratified by the UN in 1950, "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment."
We need a lawyer here.
Bah. DOJ and/or CIA employees.
And I see Martin @ #18 covered Nuremberg in more detail than I did. Apologies.
And Daffy keeps wondering why I left the Republican party...
Dude -- And what exactly are YOU actually doing to change things and have them be the way you think they should be?
The point of a democracy is not to have the other guy do it, but that we can do it ourselves.
WE -- I mean me and thee -- need to DO more and maybe, um, well, blog less. Among other things. Much more likely to produce positive results than than blaming somebody else.
Love, C.
Constance Ash #40: Suggest something.
Shoot the bastard.
Turn out of office every fuckwad who voted for him.
Forgive them if they have the balls to open a congressional investigation and enforce the subpoenas, ask the questions and pass laws to prevent this shit from happening again.
Hell, I forgot to point out this dried up little turd didn't even manage to get Wales out of the deal.
My disgust is unbounded.
Constance Ash: With all due respect, my blogging is doing something.
And not just my personal blogging, but my comments here. The About.com article on interrogation links to a post I made at Electrolite.
It would be wonderful if my e-mails, postcards, letters to the editor, and phone calls were enough, but they aren't. Telling other people about things, so they can make phone calls, and blog about it, send their own letters to the editor... that is useful.
All activism matters.
It's just that we've not had a good pulpit for so long, and the parties have become so insulated, and the Dems have damn near become the castrated, docile, animals Grover Norquist said they needed to become.
Letting them know people are opposed to that matters.
Blogs (Firedoglake, Unclaimed Territory, Eschaton) have been reshaping the landscape.
#23 mjfgates - February 07, 2008, 06:23 PM said:
There was a time when Michael Mukasey had a reputation as a fair jurist. Conservative, but reasonable. Watching his performance as AG, I have to wonder: How much did they pay him? or is it just that *all* conservatives are evil?
Another possibility, which I personally think more likely than either: they've got something on him. After all, most people have something in their history other people could use against them; nobody's totally pure and without anything embarrassing (at least) in their past. Hmmm, you say, could our Fearless Leaders be slimy blackmailers? Well, we already know they're power-hungry greedheads; why not?
From the news coverage I saw today on the NYT and AP wires, it looks like our honored AG is trying to claim that because, at one point, someone from DoJ signed off on the legality, that it's legal and un-investigatable.
There are a couple of things wrong here --
- a - the opinions of the original DOJ lawyers could be incorrect
- b - DOJ (part of the executive branch)is not the agency that enacts laws (the legislative), nor the arm of the government that interprets those laws enacted (the judicial) -- they don't have the authority
-c - Waterboarding is classed as torture, and has been since the Spanish inquisition
- d - the united states *already* has precedent on the books regarding the use of waterboarding as an illegal act -- the Unites States, as a prime mover in the ware crimes tribunals after WW II, convicted and sent away to prison several members of the Axis powers who used waterboarding on both civilians and against soldiers.
Now excuse me, I have to go away and scream quietly. And I don't even have time these days to write in my own blog (and, because of the Latest and Greatest In Web Filtering Schemes, I will no longer be able to peruse the on-line editions of the newspapers during my lunch time at work, so I'll be even more behind the curve on what is happening in the world)
We are, thank all the gods, less than a year from some form of changing of the guard. I admit impeachment would be nice and all, but at this point the procedures would probably not be finished before the gang leaves office anyway.
Now I am not a government or Constitutional scholar, but doesn't Mukasey leave office with the rest of them, and once the Dems take office, can't they still run an investigation on what was done during this administration?
As others have said, it sucks but it's not a surprise.
On the other hand, it's not a final opinion, either.
Stefan Jones@25: Don't hold back, now. Tell us how you really feel.
I am really not surprised at this turn of events. Too tired at the moment to think of something more intelligent...
Brenda von Ahsen writes, "That honestly seems to me like the only way forward. to me, at least for now. [...]
It's not the way forward. It's only a way to stay marching in place.
I already posted my open letter to Michael Mukasey, which apparently fell on deaf ears. (Deaf to the screams of...)
What was that blanket authorization Richelieu scribbled in The Three Musketeers:
"What the bearer has done, has been done in my name, and for the Good of the State."
#49 ::: j h woodyatt
It's not the way forward. It's only a way to stay marching in place.
I don't know what you mean. What I mean is that when you don't have the options you would like you take the ones you do have. The world sucks and sometimes evil prospers and there is nothing you can do about it. Sometimes you just have to accept what is.
In Buddhism one is advised to clean your corner of the world and that others do likewise. If we all did that pretty soon the whole "house" would be clean.
I note with interest that one of the things that "True Conservatives" seem to hold against McCain is his opposition to torture and things verging on it.
It's hard to tell from over here in .uk exactly why they feel that way. It could be because they can't face up to the idea that US personel will sometimes fall into the hands of opponents of the US, and that therefore the USA does not have total power over everything, everywhere, forever. Or it could be because they don't feel non-US citizens are real people, a position consistent with the "send a few back, so we can keep the rest as an underclass" position on illegal immigrants to the USA.
Stefan Jones #25: What Jim Macdonald said.
John, I think it's very much a matter of identities in an antinomian kind of way. If you're one of the Right People, then what you do must be right so long as you don't denounce the Right Way in your heart. If you think it takes torture, then it does. Conversely, those people over there who might torture are the Wrong People, and it can never be right for them to hurt you.
In practice the logic goes through more loops and swoops, and the details of what will or won't move you from Right to Wrong are complex, but that's the gist of it.
John, there's a tendency for the weak and cowardly to confuse brutality and rudeness with strength, especially when they have carefully avoided circumstances in their lives where they might have the chance to learn what strngth really looks like.
I realize that's only one explanation, and that it's a simplistic one. But it covers at lot of the jackals we have in action over here.
Terry Karney @ 42 -
What he said.
The House actually does have the ability to arrest and imprison someone, for one particular crime. It's called inherant contempt (wikipedia, scroll down). It was last used in 1934. I'm not sure why the House hasn't started these proceedings with Bolton and Miers ignoring their subpoenas, but the ability is there, if they choose to use it.
re 598: FYI you can link directly to a section in a Wikipedia article thusly.
#56 fidelio:
That's not just some fringe group of far-rightists. The idea that you become powerful by discarding morality or normal civilized rules is very common in American media. It's pure poison, but it's very common. I think there is a substantial number of Americans who want us to use torture in terrorism cases, because they believe it will protect them, and that it won't be done to them or their loved ones. The Bush administration has played this up, and will presumably keep doing that.
Nina #58: Wasn't there some talk of the Justice Dept. not enforcing some subpoenas that Congress was considering? This kind of brinksmanship is nuts. (What happens after Justice refuses to honor the subpoena? Do they zero the budget of Justice? Impeach the Attorney General? What is the Executive Branch's next move? Can this possibly end well?) The moves to concentrate power in the executive branch have put us in a position where one guy with really bad judgement could plausibly wreck the country. (Think multi-month government shutdown, genuine showdown between Congress and the President with congressional leaders arrested, etc.)
John Dallman #53:
"...It could be because they can't face up to the idea that US personel will sometimes fall into the hands of opponents of the US..."
No, that's no reason to oppose torture. After all, it only happens to that subset of the group "Mindless Consumers" called soldiers. And the whole purpose of soldiers is to be exported, expended, then used as PR fodder to create more wealth.
There's no risk to actual people, who are wealthy captains of industry and their lackeys in the halls of power.
Re: House/Senate power to arrest and detain -
I have it on good authority that there are cells in the basement of the Capitol Building.
Impeachment can be done retroactively, and if the subject is convicted, they cannot collect a pension or benefits from the Federal Government, nor can they hold a Federal office or be employed by the same.
#60 It's pure poison, but it's very common.
From Mad's parody of the original Dirty Harry:
DA: [Throwing out confession obtained under torture.] Those are the laws that made America great.
Dirty Harry: Me and the audience just decided we like the laws that made Nazi Germany great.
Wow. My comment got held for moderation. What's up with that?
Josh @64:
Clearly, it was too moderate. It's like being stopped for speeding.
I believe that all the people who think waterboarding isn't torture should step up and participate in a demonstration to show us how innocuous it is.
Seems like we owe a big apology to Japanese soldiers like Chinsaku Yuki(1), Seitaro Hata(2) and Takeo Kita (3) who were prosecuted for 'torturing' Allied soldiers.
All they did, in some cases, was pour water up the nostrils of American POWs (plus a little beating, which isn't much different from fraternity hazing, I recall hearing).
If WWII soldiers like Morris O. Killough and John Henrey Burton are still alive (they'd be at least 80), they need help, because they've spent the past 60 years thinking they were tortured as POW's, when they weren't.
If my grandfather (joined the Hong Kong defense force December 4, 1941. Hong Kong invaded on Dec. 7, Hong Kong fell on Dec. 25) was still alive, I could tell him that he wasn't tortured as a POW.
Source: Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 2006 draft.
-----------
(1) A: ...No sir, on my face, until I became unconscious. We were lying that way with some cloth on my face and then Yuki poured water on my face continuously.
COL KEELEY: And you couldn’t breath?
A: No, I could not and so I for a time lost consciousness [...]
Q: Where did the water come out when he sat on your stomach? [...]
Q: How many times did that happen?
A: Around four or five times from two o’clock up to four o’clock in the afternoon.When I was not able to endure his punishment which I received I told a lie to Yuki....I could not really show anything to Yuki because I was really lying just to stop the torture...
(2) "...the accused Seitaro Hata, did willfully and unlawfully, brutally mistreat and torture Morris O. Killough, an American Prisoner of War, by beating and kicking him; by fastening him on a stretcher and pouring water up his nostrils."
(3) "...the accused Takeo Kita, did, willfully and unlawfully, brutally mistreat and torture John Henry Burton, an American Prisoner of War, by beating him and by forcing water into his nose."
Albatross @60: I don't think there's anyone crazy enough to shut the government down for months (or longer).
The last time the Republicans tried that trick the economy of the area around the District (and any other area with a large number of Federal employees) went down the tubes...right before Christmas.
With the current economy tanking, they can't afford to put another stressor into the equation.
This must be the Infallibility Doctrine of the Justice Department. I've often forgotten it was there. I missed it when the white smoke went out for Mukasey's election.
albatross #60 - that's the beauty of inherant contempt - the Justice Department has nothing to do with it. The enforcement is carried out by the police forces answering directly to the House or Senate, and there's actually a jail cell that titularly belongs to the legislature, which they 'lease' back to the Justice Department.
Now, the Justice Department has a much bigger armed force, but hopefully most policemen have moral problems with acting against other policemen going about their legally assigned duties.
I heard about this bizarre, circular argument on the radio yesterday, and have spent a night and a morning trying to figure out how to draft a post for my blog. I have this knot of anger in the center of my chest because they are undertaking these acts _in my name_.
I am planning on contacting my representatives and senators and telling them I want full investigations, but only 58% of American's actually oppose torture, and it doesn't seem to be a full throated support of morality and the rule of law. I fear our politicians will sway to that popular 24 mentality, and let this slide.
They are making the Nuremburg defense, but I think the attorneys who wrote the memos in support of torture could be prosecuted. Or if we can't make that happen, they should at least be fired from Justice.
Actually, an individual can bring a complaint against a lawyer before the bar in the jurisdiction where that attorney is licensed. The D.C. Bar might try to argue that we don't have standing because these attorneys weren't directly representing us, but I think a strong argument could be made that the Justice Department is acting for all Americans and therefore any citizen has standing.
Hmm, now I rather wish I was still a practicing attorney. If we could strip these people of their livelihood they might decide to squeal on Bush and Cheney.
Melinda Snodgrass @71 (hi, Melinda!): I heard about this bizarre, circular argument on the radio yesterday, and have spent a night and a morning trying to figure out how to draft a post for my blog.
It gets more interesting. The judge who issued the order to the CIA to preserve any evidence of unlawful interrogation techniques, refused to hold hearings on the interrogation tape that the CIA destroyed...because he hadn't seen any evidence that they destroyed evidence of an unlawful interrogation.
Well, duh.
I suppose now the only alternative is to hope that Hillary Clinton wins the nomination and is elected - because she'll prosecute if only to get personal revenge on those that impeached Bill.
The other candidate still thinks that we can cooperate with these people.
God damn it.
The House of Representatives doesn't have a sufficient number of people of integrity amongs its members for formal condemnation, much less for investigation, cut of funds, impeache, HOUSE cleaning....
So are they all, all dishonorable men....
Maybe Muckasey is ASKING that there be an impeachment: his. He won't do his job, has told Congress to go soak in so many ways one can not count them, and he has done so in a manner that is so arrogant as to draw fire. Benefit to him/Bushco, draws impeachment charges away from Bush/Cheney, and runs the clock so that he, and Cheney can be pardoned on Bush's way out the door.
I called up all three of my congressional reps. It is late on a Friday afternoon, so the staff had time for more than the usual 20 seconds of talking.
What I told them was:
"I'm requesting you hold hearings on Mukasey's claims that waterboarding isn't torture and that he has the right not to show you documentation for that. If you don't do it, nobody will. The administration cannot be allowed to give retroactive immunity for breaking the law."
"My grandfather was a POW in WWII. I know bad things were done to him, although he never told us the exact details. Once WWII was over we put Japanese soldiers on trial for torture, including specifically for waterboarding, and some got up to 20, 25 years of hard labor for waterboarding.
"Now we're saying that what happened to those soldiers wasn't torture? We're saying that as long as an anonymous lawyer in the DoJ says it's ok to do, it's ok to do?
"And now the administration is telling you they don't even have to let you the Congress read what that lawyer wrote!"
Swearwordadj nounswearword.
I'd like to see what'd happen if we went to surviving soldiers--Allied POWs-- and told them they weren't tortured.
Or go to any surviving Axis soldiers who were punished for acts of waterboarding, and tell them they didn't deserve prison. I'm sure the German and Japanese departments of justice had memos too.
Heck, the G&J governments were worried about imminent attacks that really were about to happen and really did happen--as compared to nonspecific threats and torture-derived creativity about attacks on buildings that didn't even exist-- wouldn't that give them even more legal reasons to waterboard POWs?
Hey Chinsaku Yuki, Seitaro Hata, and Takeo Kita, I guess you deserve an apology.
Albatross @60: I don't think there's anyone crazy enough to shut the government down for months (or longer).
Lori @#68: With the current economy tanking, they can't afford to put another stressor into the equation.
The Rethuglicans certainly could go for that... remember it's not their families who'll suffer. And they can always blame it on those eeevvil libruls....
The October 2003 issue of the Atlantic featured this article, The Dark Art of Interrogation, by Mark Bowden. There was a follow-up interview with the author, The Truth About Torture (I don't believe it had been printed in the same issue). The author does not believe that torture should not be used under any circumstance, but he believes that it should be illegal.
From the interview (the boldface is the interviewer):
But what struck me most about the Israelis is that their final consensus is a very ambiguous, muddled one. They had the 1987 Landau Commission which ruled that "moderate physical pressure" and "nonviolent psychological pressure" was acceptable. Then twelve years later, they threw that out. But coercion continues to be practiced.
They've banned it, but they've arrived at the place where we ought to be—which is you ban it, but you practice it in certain selected cases. And those who do practice it do so at their own risk, knowing that they are violating the law and if there's a change of Administration or mood and they are caught in that switch they can end up going to jail. Certainly anyone who lived through the 1970s witnessed a rapid and dramatic switch in public mood concerning the intelligence community. And I think in the case of torture, that possibility acts as a healthy constraint over abuses—which, as the example of Israel shows, are apt to become widespread if there's a feeling of license.
So your basic conclusion is that no law will be nuanced enough to deal with the situations in which torture might be appropriate?
I think so. If you open that door and as Jessica Montell says, a priori give approval, then there's no stopping it. Because everyone will use torture; everyone will assume that his or her circumstance is justified. As long as torture is banned, you can only employ it at your own risk. And I think that's the only way of controlling the behavior of large numbers of people in a vast organization spread out over the entire world. You can't expect to write a law, or write a regulation that is going to be that subtle in all these circumstances.
From the article, speaking of Jessica Montell (described as the executive director of a human-rights advocacy group in Jerusalem):
She knows that the use of coercion in interrogation did not end completely when the Israeli Supreme Court banned it in 1999. The difference is that when interrogators use "aggressive methods" now, they know they are breaking the law and could potentially be held responsible for doing so. This acts as a deterrent, and tends to limit the use of coercion to only the most defensible situations.
"If I as an interrogator feel that the person in front of me has information that can prevent a catastrophe from happening," she says, "I imagine that I would do what I would have to do in order to prevent that catastrophe from happening. The state's obligation is then to put me on trial, for breaking the law. Then I come and say these are the facts that I had at my disposal. This is what I believed at the time. This is what I thought necessary to do. I can evoke the defense of necessity, and then the court decides whether or not it's reasonable that I broke the law in order to avert this catastrophe. But it has to be that I broke the law. It can't be that there's some prior license for me to abuse people."
In other words, when the ban is lifted, there is no restraining lazy, incompetent, or sadistic interrogators. As long as it remains illegal to torture, the interrogator who employs coercion must accept the risk. He must be prepared to stand up in court, if necessary, and defend his actions. Interrogators will still use coercion because in some cases they will deem it worth the consequences. This does not mean they will necessarily be punished. In any nation the decision to prosecute a crime is an executive one. A prosecutor, a grand jury, or a judge must decide to press charges, and the chances that an interrogator in a genuine ticking-bomb case would be prosecuted, much less convicted, is very small.
This view assumes that there will be oversight, however. Breaking laws doesn't seem to hinder the current crowd much.
Kathryn from Sunnyvale @ 76... What was their reaction to your call?
I think everyone in our mis-administration who thinks waterboarding is not torture should have it done to them. How could they object? It's okay, it's NOT torture!
it's better than they deserve.
Paula = # 80
If the Congresscritters are former members of the U.S. armed forces they *may* have had a very limited version of waterboarding done to them -- it is one of the techniques that are used during training of those personell who will need to be able to practice escape and evasion -- training that is *not* given to the military as a whole.
And it is a limited version of the technique -- to use it in a really stressful manner would cause certain damage to the trainees. There is also, in the mind of the trainees, the knowledge that the stress *will* stop.
Which is *not* the case when torture is used on "real subjects." Those subjects will have to presume that the torture will continue. And they will either
- (a) give the information "wanted",
- (b) Lie to appear to give the information wanted*
- (c) be too damaged to be able to give *any* information
- (d) Die, either directly from the torture (drowning) or through stress-induced cardiac arrest
Note that only one in 4 of those options would give the "desired" result of getting accurate information, and all other cases represent useless damage.
And you have the certain knowledge that those who have administered the torture are people who you do not dare to release into society at large, because they have shown that they are capable of the extreme lawlessness and brutality that torture is, and that they know who (at least in their immediate chain of command) *told them to do so*.
And we have ample evidence that information given under torture is unreliable (just how many "witches" and "heretics" admitted to making pacts with devils and demons?**)
Torture , as a method to obtain valid and reliable intelligence *does not work*.
------------------------------
* even if the subject is someone who knows the actual information needed, the *justification* given for using torture is usually that there is not enough time for "normal" investigative techniques, all the subject has to do is to give contrary information that needs to be checked out to be proven to be false, until any *true* information will be useless because its "sell by date" has expired
**Of course, there is a certain subset of the population that actually *does* believe that there were (and still are) any number of individuals who have made pacts with demons*** and *are* evil witches
*** I think Dick Cheney and his cohorts are evil all by their lonesome -- I don't think they needed direct infernal intervention and cooperation for the effort
#81: I wonder if there's actually anyone who thinks that torture must be a good idea because, after all, it worked so well on all those witches.
A contemporary description of witch trials quoted in Sagan's The Demon-Haunted World:
In these trials nobody is allowed a lawyer or any means of fair defense, for witchcraft is reckoned an exceptional crime [of such enormity that all rules of legal procedure may be suspended], and whoever ventures to defend the prisoner falls himself under suspicion of witchcraft--as well as those who dare to utter a protest in these cases and to urge the judges to exercise prudence, for they are forthwith labeled supporters of witchcraft. Thus everybody keeps quiet for fear.
IMO, you don't need a rigged trial to convict the guilty; trying to rig the trial proves that you *don't care* if the suspect is guilty or not, as long as convicting them will make you look better.
#47:
We are, thank all the gods, less than a year from some form of changing of the guard. I admit impeachment would be nice and all, but at this point the procedures would probably not be finished before the gang leaves office anyway.
@25: To work a variation on what Jim Macdonald has already pointed out and Lizzy L and others have seconded--*we* get the government *they* deserve.
Jon Meltzer@#73 -- Not only that, she of all the candidates will be held under the highest scrutiny by the press and the partisan judges on the Supreme Court. (I believe Obama will get put through the ringer if he becomes President, but I don't think he'll get it to the extent Hillary Clinton would.) She'll get away with nothing, and is our best chance of seeing the expanded Executive Powers repealed.
Ragnell #84:
If either Hillary[1] or Obama wins the white house, we will see a deep, heartfelt conversion on where the limits of presidential power and executive privilege should be, on the part of the Republicans. And if we get another Republican president, I expect we'll soon see the Republicans and Democrats switch sides on the whole issue of "activist judges legislating from the bench" and "the living constitution" and such.
A lot of positions on this kind of issue are spun as being philosophical differences, but are really about who expects to have the power and who expects to be the victim of it.
[1] No, I don't think it's demeaning to use the same name she uses on her campaign signs. Neither was "Ike" or "W" demeaning when used by their supporters. It is kind-of demeaning to think that the only way we can get a woman as president is if she marries well, but I can't fix that.
Ragnell: I fear, actually, that the past treatment of the Clintons, and the treatment she will get if she wins, are the things which make her unlikely to try to reverse, and repudiate, the grabs of power the Bush Administration has accomplished.
Barring more supreme court cases, as a result of lawsuits, I am afraid she will use the powers the Bush cabal has been using to insulate herself from the attacks of a hostile minority, and the Anti-Clinton Noise Machine.
Terry, #86: both candidates want power; they have to be in love with it to run. There have been some people, historically, who've turned down that temptation; the most famous is probably George Washington, who could have been king in all but name. In our own time, Al Gore has done so. I hope for this in Obama and Clinton, but I will not count on it.
BTW, I think Mukasey is just running interference until W. pardons all the criminals.
Randolph: I worry about all of them (though I didn't worry about Dodd), but I think Clinton is predisposed to tend to keep them.
Obama I am not so sure, he has less baggage.
#87 - some of us read history to tell us that George Washington could have had the name and the office (though not under a written constitution) - indeed I am inclined to agree with the notion that the Electoral College was in large part intended to go out and pick (draft) somebody who had likely enough not actively sought the office.
I haven't seen anything from Harry Turtledove or anybody else on a George Washington as fertile as Lazarus Long and who has as much faith in his own genes - but it makes an interesting alternate history notion to imagine Washington providing for children of his own.
Clark E. Myers @89: Father of his country?
There had been a short story (can't recall title or author; think I read it in an old Analog) that had it that since Washington did not have kids*, his relationship to the men around him was to treat them as surrogate sons, and it was that 'kinship' (these men came to see each other as 'brothers') that helped cement American democracy.
* In the story, the consequence of something SFnal; young Washington's exposure to an alien power source or something of the sort.
Right now, I want them all investigated, charged, arrested and convicted. Partly out of anger, I admit, but mostly out of my belief that without convictions in these cases, the rule of law is over.
But. Come January, I don't know how I feel about it. Really bright dedicated people who know how to get things done in Washington D.C.? Are not in infinite supply, and there is SO much that needs to be done. For one thing, there isn't a single Fed. regulatory agency that doesn't need a top-to-bottom audit to see where partisan concerns have been trumping science. So, what percentage of our government should be prosecuting, vers. moving forward?
sherrold 91: Right now, I want them all investigated, charged, arrested and convicted. Partly out of anger, I admit, but mostly out of my belief that without convictions in these cases, the rule of law is over.
You forgot punished. If they aren't punished, convicting them won't help either.
As for moving forward, until we deal with the infestation of human(oid) termites in its structure, the house cannot stand. I think we need to give the exterminators free reign for a while, then get the engineers to fix it so that such an infestation can never happen again.
I vote for convicted and punished, because Cheney and Rumsfeld were Nixon's, because names that are associated with Iran-Contra are in this administration.
The house needs to be cleaned.
Also, I don't see why the auditing and repair work don't help with the prosecuting work. One feeds the other.
I want them convicted and punished, mainly because I also agree with what Chris at 82 said:
... We are where we are to no small extent because Nixon got away clean and Cheney saw him do it. If Bush and Cheney get away with what *they're* doing, what happens when Addington and Yoo are all grown up and running for office in their own names? What will they think they can get away with?
That said, since I suspect it will never happen (though I truly hope I'm wrong), I cling to the dreams of Larry Brennan (at 24) and P J Evans' cube-mate in the Cognitive Dissonance: Bush in Cleveland thread:
#26 ::: P J Evans ::: (view all by) ::: March 24, 2006, 03:23 PM:
No Xopher, it should be work-release from prison to clean bedpans in a VA hospital.
Cube-mate says: bedpan detail in the orthopedics ward at Walter Reed Army Hospital.
Ever since I read that, that has been my dream. Unlikely to happen, but my dream nonetheless.
sherrold @91:
there isn't a single Fed. regulatory agency that doesn't need a top-to-bottom audit to see where partisan concerns have been trumping science.
I'd just like to point out that the federal agencies don't need top-to-bottom auditing; only the very upper echelons are political appointees. The vast majority of us who work in the government are not politically appointed, and many of us are Democrats. Finally, only some of the agencies have had to deal with less-than-objective concerns, mainly the ones that are politically-motivated or religiously-sanctioned (i.e., global warming, women's health, etc.). Getting rid of the politically appointed (which is a given anytime there's a regime change) will go a long way towards solving the objectivity problems, IMHO.
#89 ::: Clark E. Myers ::: (view all by) ::: February 10, 2008, 06:12 PM:
"I haven't seen anything from Harry Turtledove or anybody else on a George Washington as fertile as Lazarus Long and who has as much faith in his own genes - but it makes an interesting alternate history notion to imagine Washington providing for children of his own. "
Please note that the only thing worse than an infertile king is a too-fertile king. Having a half-dozen sons with a close claim on the throne is bad; throw in two dozen b*stards, and there's a plenitude of claimants.
A lot of the discussion about torture revolves around one assumption. It doesn't work.
Unfortunately this isn't true. It does work, very well, always has. This is why it is used so widely to extract information, and this is why all governments assume that any secrets held by captured persons who are tortured will be betrayed.
There are objections. A clever torturer will overcome each of them. You might think, being a very witty person, that you can say exactly a torturer wants to hear, or that you can lie. This works if you are being beaten by some Al Queda amateur. But if the torturer knows his business, he will begin by asking you questions he already knows the answer to. And if you lie, you will suffer such excruciations that you will never, ever, risk such horror again. You will lie, and you will suffer terribly. And then you won't lie anymore. Pain and fear have conditioned you to Not Lie. Your capacity to dissemble is gone, along with several body parts.
That is what torture does. You do not come out of it whole, you do not endure it while thinking coolly and rationally. You will never really heal.
You may think- well, at least under those conditions, my answers will be partial, irrational and unusable. Wrong again. You are not the only source of information. There are many more, including more torture victims. You may only give scattered puzzle pieces, but the people taking notes will put it all together.
You may think- doesn't matter, they'll kill me and then they won't get any information at all.
Maybe. Or maybe they killed you just to scare the hell out of everyone else watching. Who will now sing like canaries.
Torture works. Waterboarding, now that's a different issue.
Ben
Ben: To be polite, you are misinformed.
Torture isn't a reliable means of getting useful information. I know, because doing that is what I do (fifteen years as an army interrogator).
By your own logic, the last sentence of yours makes no sense. Unless you are saying waterboarding isn't torture?
No, I didn't think so.
Which means (to me) you somehow separate waterboarding from other, acceptable, tortures.
Ben: I'm sorry, I forgot to point out the futility of your argument on the ability of the torturer to ensure truth.
What if the victim doesn't know what the torturer wants to know? The truth is no defense, because pleading one's, honest, ignorance, isn't stopping the pain.
So the victim is (despite your facile claim to the contrary) taught to lie, and he knows the lie will be safe. The worst that happens for lying is the pain continues.
No, one can argue (badly) that only those who know will be tortured, but if you know what they know, you don't need to torture them.
Give me a week (at the most), with no restraints on what I can do; or just the "non-tortures" the present administration says are needed and I will be able to make you admit to things you didn't do, with people you didn't know.
Honestly, I'd be surprised if it took me so long as three days.
Ben, that's really vivid, but it's not factually correct. You can get someone to say what they want to hear, but only if you already know exactly what you want them to say. This is not "the truth," but a confession—to whatever the torturer wants.
Several of the people here could get you to confess to being Osama bin Laden, the Pope, and Genghis Khan inside of several hours. The fact that the victim will say anything to make the torture stop makes it unreliable as an interrogation technique.
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