Send Better Lawyers

Kevin Jon Heller, an authority on international law, is utterly unconvincing in his effort to analogize the OLC 'torture memos' to the Nuremburg trials.

There is, however, another NMT case that does provide significant support for prosecuting the authors of the OLC memos: United States v. von Weizsaecker et al., better known as the Ministries Case, in which a number of government ministers, state secretaries, and high-ranking members of the Nazi party were convicted of crimes against peace, war crimes, and crimes against humanity.  The critical defendants are Ernst von Weizsacker himself, who was the State Secretary in the Foreign Office, and Ernst Woermann, who was the Undersecretary of State and head of the Political Department in the Foreign Office.  The two defendants, who were the Nazi government’s primary legal advisers, were convicted of crimes against humanity for approving SS actions that they knew violated international law.

How did the court reach its verdict?

First, it concluded that Woermann — and by implication von Weizsaecker, his superior — knew that the deportations violated international law (pp. 497-98)...

...Second, the Tribunal held that because the defendants knew that the deportations violated international law, they had an absolute duty as the Reich’s legal advisers to object to the deportations when the SS asked them to assess their legality (pp. 958-59):

...The parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny.  Nothing is lost if we simply substitute “Yoo, Bybee, and Bradbury”  for “Woermann and von Weizsaecker,” “OLC” for “Foreign Office,” and “torture” for “deportations.”

"Nothing is lost"?  Nothing is lost except the whole logic of the argument.  Bybee and Yoo were perfectly aware that some behaviors would be prohibited (e.g., mock executions) and others would pass muster easily (e.g., the belly slap and the attention grasp).  The question challenging them was how to draw lines with behaviors that shade from white to gray to black.

For example, is sleep deprivation torture?  Surely it depends on the duration; four hours of sleep deprivation isn't torture; four days might be; four weeks surely would be.  The OLC authors made a good faith attempt to set medical criteria and draw a line.  Certainly someone might revisit their conclusion years later and conclude that their line went too far.  However, that would be very different from concluding that they had deliberately ignored the law in setting the line and "knew" that the practice they had approved was illegal.  In which case, the Ministries precedent has no weight at all.

The same argument would apply to waterboarding.  Bybee noted that 26,829 servicemen were subjected to SERE training, including waterboarding, from 1992 to 2001.  Well, either the US routinely tortures its servicemen, or, as with sleep deprivation, at some level of intensity waterboarding is less than torture.  Bybee opted for the second choice and allowed waterboarding subject to medical monitoring and strict guidelines.  Again, his judgment is subject to second-guessing but the Ministries argument does not work.

The Times has more on the utter improbability of prosecutions of the OLC legal team:

Efforts to prosecute the high-level Bush administration officials who created and authorized the interrogation program in 2002 — like Vice President Dick Cheney; the C.I.A. director, George J. Tenet; the defense secretary, Donald H. Rumsfeld; and Alberto R. Gonzales, who was then White House counsel — also “would be extremely difficult,” said Eric Posner, a University of Chicago law professor.

It could create a partisan firestorm that Mr. Obama, who has said he wants to concentrate on fixing the economy and on other parts of his agenda, would prefer to avoid for political reasons. And, like the interrogators, the policy makers could argue that government lawyers assured them the program was legal.

“The political officials would say they believed what they were doing was lawful, and a jury could very easily believe that,” Mr. Posner said.

The shield against prosecution provided by the Bush legal team’s assurances has led some critics to focus on the role played by the lawyers themselves, like Mr. Cheney’s counsel, David S. Addington; Mr. Rumsfeld’s counsel, William J. Haynes II; and the authors of the Justice Department memorandums: John C. Yoo, Jay S. Bybee and Steven G. Bradbury.

Legal specialists from across the ideological spectrum have criticized those memorandums, especially a set written in 2002 by Mr. Yoo and Mr. Bybee, who is now a federal judge. Some have accused the lawyers of deliberately writing down a false reading of the law to enable policy makers to violate it with impunity.

But there is little precedent for prosecuting government lawyers who provided arguably bad legal opinions. Moreover, Mr. Yoo, the memorandums’ principal author, had espoused idiosyncratic views about presidential power before joining the Justice Department, so it would be difficult to prove that he did not believe what he was writing.

They do crack open the window a bit:

One thing could change that dynamic, however. The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.

If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.

Hard to believe we will see an easy example of that.  Seriously - are these guys dumb enough to write "Wrong answer, try again." in an email sure to be archived?  What we might get, however, would be emails presenting new information or revised guidelines and asking for a re-think.  Problematic! 

To return to my previous example, suppose Bybee initially concluded that four days of sleep deprivation was torture.  Dick Cheney, through Addington, then sends some psychological study or other purporting to demonstrate that subjects can easily recover from fifteen days of sleep deprivation, and implores Bybee to reconsider.  Bybee then re-draws the line at eleven days.  Is he now a criminal?  Was the change made in good faith or in response to pressure from above?  (OK, or both?)   Is Cheney a war criminal for trying to reason with and educate his attorney?

Earnest libs already know the answers, of course.  The rest of us will await more information.

Comments

[clarice]

Nick, charlie's being much kinder than I've been, but if you are making arguments about laws or legal rulings, you really must not count on others taking your wod for it. We won't especially when we've read the laws ourselves. This is much more boring than say "Thinking About History 101". Here you must cite facts with citations to where you got anything which is not generally conceded to be true and then cites to the law or legal opinion you are relying on so we can see (a) have you cited the right law ?(b) does it say what you think it says?(3) do we take issue with the opinion ? (40 Is it inappliacable--i.e., does it deal with an entirely different set of facts/law? Has it been superceded by a new law?

[Topsecretk9]

OT, but interesting

former FBI informant who said he can tie 1960s radical William Ayers to the bombing of a police station in The City will reportedly be interviewed today by San Francisco police.

Park Police Station was bombed Feb. 16, 1970, killing Sgt. Brian McDonnell and injuring eight other officers.

Larry Grathwohl, who infiltrated the radical group Weather Underground and later testified in front of the U.S. Senate and several grand juries, said a San Francisco police inspector asked to interview him while he’s in town.

“It’s ironic that in 39 years, the San Francisco Police Department and the prosecutor’s office haven’t asked to talk to me,” Grathwohl said.

Police Sgt. Wilfred Williams said he could not confirm today’s questioning of Grathwohl or comment on the case since it’s an open investigation.

Grathwohl said Ayers told him that his wife, Bernadine Dohrn, planted the bomb with Ayers’ knowledge.

Oh, and someone better bring crayons and giant pad of paper to Janet Napalitano because a super extreme republican was the FIRST ever domestic terrorist was added to the FBI's most wanted along with Obama

Daniel Andreas San Diego An alleged animal rights extremist from the western U.S. state of California has been added to the Federal Bureau of Investigation's Most Wanted list.

Daniel Andreas San Diego is accused of bombing two California companies in 2003.

... The 31-year-old is the first domestic terror suspect added to the list of the bureau's 24 most wanted, which includes al-Qaeda leader Osama bin Laden.

The FBI says animal rights and environmental extremists have been responsible for more than 1,800 criminal acts and more than $110 million in damages.

[JM Hanes]

Tops: So much for the newly minted "rule of law" Democratic party!

[daddy]

I like the idea that 4 Chief JAG (or Hag:) Officers knew Waterboarding was illegal, yet were unable to stop the military of which they were the top legal Officers from illegally Waterboarding 20,000 troops. Kind of doesn't make sense.

Lets try some other examples.

At least 4 Chief JAG Officers know smoking crack is illegal, so therefore its okay for the military to give crack to 20,000 Troops.

At least 4 Chief JAG Officers know bestiality with donkeys is illegal, so its okay to give Vaseline and donkeys to 20,000 troops.

At least 4 JAG Officers know Waterboarding is illegal, so its okay to Waterboard 20,000 US troops.

What am I missing? If it was just a little bit of crack, or a little bit of donkey love, or a little bit of Waterboarding, does that maybe make it okay?

How about armed robbery? Am I one of the 20,000 that gets to do that? I've always wanted to knockover a liquor store.

[cathyf]

Hey, daddy, it's 26,000, not 20,000...

;-)

[clarice]

There you go again, Daddy, talking dirty!

I am going to nag,nag,nag you to write for AT until you agree to do it. You write beautifully about interesting things--travels, science, the military,life in Alaska.

[Nick]

I like the idea that 4 Chief JAG (or Hag:) Officers knew Waterboarding was illegal, yet were unable to stop the military of which they were the top legal Officers from illegally Waterboarding 20,000 troops. Kind of doesn't make sense.

Posted by: daddy
----------------------

First, it was the CIA, or more likely CIA contractors who did the waterboarding.

Second, if you're talking about SERE training and waterboarding during training of our own troops, then obviously the law doesn't apply to this case. The law applies to ENEMY combatants, not to the training of one's own troops. That issue was raised upthread; I didn't bother responding to the argument because I figured (apparently mistakenly) that anyone who considered the comparison would immediately recognize why it was inapposite.

[boris]

idiot

[clarice]

Hit, I notice Myrtle Beach is still burning. You did't have a campfire did you, honey?

[clarice]

Yes, boris--I think his parents should sue for their tuition money.

[Rick Ballard]

idiot

Too charitable.

[Nick]

"And despite being a conservative jurist"

Who cares? Nobody disputes it is a controversial issue with some reasonable people on both sides.

Posted by: boris
-----------------

Actually, if you read the original post, that's exactly what is at the center of the dispute--CAN reasonable people doubt that waterboarding is torture such that an OLC attorney is justified in suggesting that it isn't?

That's what Maguire is hanging his argument on in denying that holding Nazi attorneys liable for writing a memo advising a violation of international law is analogous to the OLC attorneys writing memos advising waterboarding isn't torture.

And for the person who suggested it was absurd to suggest the OLC was giving permission--you couldn't be more wrong. The purpose and effect of the OLC memos was to give legal cover to those ordering and executing torture.

And waterboarding IS torture. We've prosecuted our own soldiers for doing it as far back as 1900. We've prosecuted Japanese soldiers for doing it following WWII, Americans again during Vietnam, and even allowed a civil suit against a sheriff in the 80's for waterboarding confessions.

And in 2006, the U.S. military, in order to preserve its honor in the face of Bush administration conduct, actually had to codify a prohibition against waterboarding--prior to that, it was just understood that you don't waterboard/torture captives.

Anyone who things an American or international court will hold that waterboarding isn't torture is simply deluding themselves.

[boris]

"CAN reasonable people doubt that waterboarding is torture such that an OLC attorney is justified in suggesting that it isn't?"

The answer you imply is "no" which excludes you from the set of reasonable people.

All you are doing is preaching your dogma here. Go somewhere else.

[boris]

After the "Who cares?" post I wondered if I should clairify ...

"Nobody here disputes it is a controversial issue with some reasonable people on both sides."

Since it is obvious that lil Nikki would in fact dispute it. Figured most would infer that qualifier.

[Cecil Turner]

And waterboarding IS torture. We've prosecuted our own soldiers for doing it as far back as 1900. We've prosecuted Japanese soldiers for doing it following WWII, Americans again during Vietnam, and even allowed a civil suit against a sheriff in the 80's for waterboarding confessions.

Preposterous. Name one case in which the current practice (not some version where they pump the victim full of water and then jump on him to get it back out) was held to violate a torture statute (not a prohibition against maltreating POWs, which by Geneva "may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind").

Now explain why it's not "torture" when applied to American servicemen.

[Nick]

Now explain why it's not "torture" when applied to American servicemen.

Posted by: Cecil Turner
---------------

Waterboarding is not torture when WE apply it to American soldiers during training, to prepare them for being tortured if captured. That really shouldn't be hard position understand.

But here's the step by step analysis:

International law (Article 3 of the Geneva Convention of 1949) prohibits the torture of PRISONERS.

Soldiers being trained by our own military are not PRISONERS. They are trainees.

Thus, the prohibition from the Geneva Convention (and U.S. Code cited upthread, which incorporates the Geneva Convention) does not apply to a nation's TRAINEES.

Once more, --it's illegal to torture captives; one can apply harsh treatment, including torture, to one's own trainees, during training.

Trainees VOLUNTEER for the experience. Captives don't.

It's amazing that one would have to point this out. But then it explains a lot too.

[Nick]

"CAN reasonable people doubt that waterboarding is torture such that an OLC attorney is justified in suggesting that it isn't?"

The answer you imply is "no" which excludes you from the set of reasonable people.

All you are doing is preaching your dogma here. Go somewhere else.

Posted by: boris
-----------------
Here is the text of the four prior JAG chiefs, "Eurocrats", and also apparently unreasonable people:

November 2, 2007

The Honorable Patrick J. Leahy, Chairman United States Senate Washington, DC 20510

Dear Chairman Leahy,

In the course of the Senate Judiciary Committee's consideration of President Bush's nominee for the post of Attorney General, there has been much discussion, but little clarity, about the legality of "waterboarding" under United States and international law. We write because this issue above all demands clarity: Waterboarding is inhumane, it is torture, and it is illegal.

In 2006 the Senate Judiciary Committee held hearings on the authority to prosecute terrorists under the war crimes provisions of Title 18 of the U.S. Code. In connection with those hearings the sitting Judge Advocates General of the military services were asked to submit written responses to a series of questions regarding "the use of a wet towel and dripping water to induce the misperception of drowning (i.e., waterboarding) . . ." Major General Scott Black, U.S. Army Judge Advocate General, Major General Jack Rives, U.S. Air Force Judge Advocate General, Rear Admiral Bruce MacDonald, U.S. Navy Judge Advocate General, and Brigadier Gen. Kevin Sandkuhler, Staff Judge Advocate to the Commandant of the U.S. Marine Corps, unanimously and unambiguously agreed that such conduct is inhumane and illegal and would constitute a violation of international law, to include Common Article 3 of the 1949 Geneva Conventions.

We agree with our active duty colleagues. This is a critically important issue - but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation. All U.S. Government agencies and personnel, and not just America's military forces, must abide by both the spirit and letter of the controlling provisions of international law. Cruelty and torture - no less than wanton killing - is neither justified nor legal in any circumstance. It is essential to be clear, specific and unambiguous about this fact - as in fact we have been throughout America's history, at least until the last few years. Abu Ghraib and other notorious examples of detainee abuse have been the product, at least in part, of a self-serving and destructive disregard for the well- established legal principles applicable to this issue. This must end.

The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed. In this instance, the relevant rule - the law - has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise - or even to give credence to such a suggestion - represents both an affront to the law and to the core values of our nation.

We respectfully urge you to consider these principles in connection with the nomination of Judge Mukasey.

Sincerely,

Rear Admiral Donald J. Guter, United States Navy (Ret.) Judge Advocate General of the Navy, 2000-02

Rear Admiral John D. Hutson, United States Navy (Ret.) Judge Advocate General of the Navy, 1997-2000

Major General John L. Fugh, United States Army (Ret.) Judge Advocate General of the Army, 1991-93

Brigadier General David M. Brahms, United States Marine Corps (Ret.) Staff Judge Advocate to the Commandant, 1985-88

http://leahy.senate.gov/press/200711/110207RetGeneralsOnMukasey.pdf

Read again:

Major General Scott Black, U.S. Army Judge Advocate General, Major General Jack Rives, U.S. Air Force Judge Advocate General, Rear Admiral Bruce MacDonald, U.S. Navy Judge Advocate General, and Brigadier Gen. Kevin Sandkuhler, Staff Judge Advocate to the Commandant of the U.S. Marine Corps, unanimously and unambiguously agreed that such conduct is inhumane and illegal and would constitute a violation of international law, to include Common Article 3 of the 1949 Geneva Conventions.

UNREASONABLE PEOPLE, according to some here.

AND:

Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise - or even to give credence to such a suggestion - represents both an affront to the law and to the core values of our nation.---------

Waterboarding is illegal in ALL circumstances. To suggest otherwise is an AFFRONT to the core values of our nation.

Why do you all hate America?

[Ignatz]

-We've prosecuted our own soldiers for doing it as far back as 1900. We've prosecuted Japanese soldiers for doing it following WWII, Americans again during Vietnam, and even allowed a civil suit against a sheriff in the 80's for waterboarding confessions.-

Nick, you ignorant slut.
We prosecuted precisely two soldiers in the last 100+ years. One during Viet Nam for a battlefield incident which contravened Army regulations and one in the Spanish American War for a brutal method bearing almost no resemblance to present day waterboarding. The [one] Japanese soldier prosecuted had used methods even more brutal and more importantly was tried for considerably worse acts, the waterboarding was tossed in to the mix. Other Japanese had waterboarded our soldiers but were not tried in the absence of other acts.

But of course you knew all that from my previous post so perhaps you're not an ignorant slut but just a cheap, dishonest one?

For the third time I'm asking you to please provide a citation in which an international law states that waterboarding is prohibited.

[boris]

Waterboarding is not torture when WE apply it to American soldiers ...

Idiotic. If it is torture for anybody it is torture for all. Here, let me help you on this ...

What you seem to be trying (in your own simple minded way) to express is that "torturing" our own trainees is not i l l e g a l.

Of course the obvious response is that if waterboarding fit a legal definition of torture it would be illegal to use it on our trainees.

[Cecil Turner]

International law (Article 3 of the Geneva Convention of 1949) prohibits the torture of PRISONERS.

The word "prisoners" appears nowhere in that article. Article 4 explains what "prisoners of war" means, and the Al Qaeda types clearly don't qualify. In short, you don't know what you're talking about.

Thus, the prohibition from the Geneva Convention (and U.S. Code cited upthread, which incorporates the Geneva Convention) does not apply to a nation's TRAINEES.

This is dumber'n dirt. The actual internation law that applies to both situations is the Convention Against Torture (CAT). If you claim waterboarding is torture, then it's prohibited. The Geneva Conventions on prisoners of war doesn't apply to either.

Trainees VOLUNTEER for the experience. Captives don't.

What difference does that make to the meaning of "torture"? Here's the definition:

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession . . .

Note that "he asked for it" is not a defense.

It's amazing that one would have to point this out. But then it explains a lot too.

It's amazing that you don't even know which convention to cite when you gripe about "torture" . . . but then it explains a lot, too.

[Cecil Turner]

UNREASONABLE PEOPLE, according to some here.

Nick, you're going from stupid to stupider. The contention was: "Nobody disputes it is a controversial issue with some reasonable people on both sides." You're the one claiming everyone who disagrees has to be unreasonable.

[verner]

Cecil, did the 2005 memo mention any lingering physical, emotional or mental damage resulting from the 2002/3 wbdings?

Were there any footnotes indicating that the three recipients inhaled water into the lungs resulting in respiratory distress/ Pneumonia? Cardiac Arrest? Broken Bones? Soft tissue injury? Cerebral Hemorrhage?

Any lasting physical disability at all?

Were there any footnotes noting mental illness as a result? Psychotic episodes? Severe Anxiety attacks? Post traumatic Stress syndrome? Catatonic reaction?

I sure didn't see any. And I feel quite sure that they would have been there.

Torture, as defined by Nick, is a completely subjective term.

I feel quite certain that for the 40 seconds that water was applied, the experience was quite terrifying. (DUH)

But to meet any meaningful definition, it must be proven that the process produced severe, lasting physical or mental pain, not temporary stress or discomfort.

No matter what the eurocrats who authored that joke of an international "torture" law say.

In other words Nick, Your conscience may be shocked, but mine sure isn't.

On the other hand, my conscience is REALLY shocked that the law says a 38 week fetus can be ripped limb from limb from it's mothers womb--a position our president considers both moral and legal. The courts say that falls under a woman's right to privacy. Go figure.

How do you stand on that one?

Seems to me virtue is in the eyes of the beholder.

[clarice]

Anduril--here's about all I could find but yours is a great question:

From Wikipedia, the free encyclopedia
Jump to: navigation, search

Soufan in Afghanistan, following 9/11.A Lebanese-American FBI agent, Ali Soufan was instrumental in a number of high-profile anti-terrorism cases both in the United States and abroad, before retiring from the force after publicly chastising the CIA for not sharing information with him which could have prevented the September 11th attacks.

[Ignatz]

Cecil,
In Hamdan didn't SCOTUS rule that common article 3 does apply to even unlawful combatants? I know reasonable people think that decision was wrong but I'm pretty sure that's what it said.

And I agree with the argument that SERE demonstrates that waterboarding as practiced by the US is not torture otherwise our guys wouldn't endure it.
But it seems to me Nick has a point about volunteerism.
If the police place a ball gag in someone's mouth, strip him down and whip him they're probably headed to jail.
If the same guy volunteers to let his girlfriend do that to him, he's probaly safe from prosecution (and more than likely he's an honored member of some political body).

[Cecil Turner]

Any lasting physical disability at all?

Some claim KSM had mental issues afterward. But the predominant difference between SERE graduates (and those subjected to similar treatment) and returning POWs from regimes the lefties support is that the former are generally physically whole, whilst the latter are not (e.g., ask Sen McCain to do jumping jacks).

In any event, if we're going to call SERE techniques "torture" then we have to come up with a new term to describe this sort of thing . . . which of course would never be acceptable in any sort of "training."

[Phosphor]

Nick,

If a particular act (say, waterboarding) is torture, it is torture no matter who it is applied to and no matter what circumstances it is applied under.

Neither the CAT, nor the GCs, nor 18 U.S.C. § 2340, allow any "training" exceptions for torture.

So stand up for your principles, man: demand war crimes tribunals for every American President, every U.S. military leader (including all of the JAG officers you cited earlier), and every Congressperson who's served since the SERE program was initiated.

(Otherwise, it looks like you're only interested in caterwauling about "torture" to score some political points, while mindlessly repeating the latest batch of dishonest talking points about a topic you clearly don't understand.)

[verner]

Some claim KSM had mental issues afterward.

yeah, but how can you blame WBding? Maybe it's three thousand ghosts haunting his sleep.

[Jane]

Waterboarding is not torture when WE apply it to American soldiers during training, to prepare them for being tortured if captured. That really shouldn't be hard position understand.

I am flabberghasted that anyone would say that with a straight face.

[Nick]

Nick,

If a particular act (say, waterboarding) is torture, it is torture no matter who it is applied to and no matter what circumstances it is applied under.

Neither the CAT, nor the GCs, nor 18 U.S.C. § 2340, allow any "training" exceptions for torture.

So stand up for your principles, man: demand war crimes tribunals for every American President, every U.S. military leader (including all of the JAG officers you cited earlier), and every Congressperson who's served since the SERE program was initiated.

Posted by: Phosphor
------------------------

It is torture, but not illegal under the law.

Our soldiers are VOLUNTEERING for the experience as part of their training. They have the option of saying "Stop, I want to go home now." Detainees don't.

How is that so hard for some of you to understand?

It's not illegal torture when you volunteer for it.

[Nick]

Waterboarding is not torture when WE apply it to American soldiers during training, to prepare them for being tortured if captured. That really shouldn't be hard position understand.

I am flabberghasted that anyone would say that with a straight face.

Posted by: Jane
-------------------

It's not ILLEGAL torture. The trainees volunteer for it.

Explaining this distinction really shouldn't be necessary.

[Nick]

Neither the CAT, nor the GCs, nor 18 U.S.C. § 2340, allow any "training" exceptions for torture.

Posted by: Phosphor
--------------------

They don't make exception for torture during training because torture during training doesn't fall under the definition of ILLEGAL TORTURE under the relevant laws.

You have to read the definitions section of statutes and codes to understand the limitations to which the law applies. They expressly apply only to captives.

This is so elementary that it really shouldn't need continued explanation.

Surely one of you has a law degree and can explain this to the rest.

[clarice]

Nick:"Explaining this distinction really shouldn't be necessary."

Actually, Nick, it is you who are too careless with words hence your argument that torture wasn't torture when the men weren't prisoners and volunteered for it was so preposterous.

I promise you that if you and your friends take turns tying eachother up and doing painful things to your tender bits and your friend dies in the process, the prosecution will charge you with aggravated assault because it still is torture.

[Nick]

For the third time I'm asking you to please provide a citation in which an international law states that waterboarding is prohibited.

Posted by: Ignatz
----------------

I've been unable to access the case law from the internet. I'm not going to the law library merely to satisfy your whim. The synopses of the cases cited in the news reports clearly state that persons were being prosecuted for waterboarding.

If you doubt those sources (more librul media paranoia), then you access the cases at any adequately equipped law library.

I'm willing to accept the synopses, the joint statements of the JAG chiefs, John McCain's assertion--that waterboarding is torture, and that includes under U.S. and international law.

If you want an actual case holding, you can dig it out.

[Jane]

Why do you all hate America?

Well that's a sure sign of a troll who is losing the argument.

Get lost Nick. No one needs your brand of hate.

[Cecil Turner]

In Hamdan didn't SCOTUS rule that common article 3 does apply to even unlawful combatants? I know reasonable people think that decision was wrong but I'm pretty sure that's what it said.

Essentially, yes. (I was focused on the effects of the particular case--essentially the requirement for a commission that complied with the article--but it would also apply the other provisions of the treaty.)

However: 1) that ruling can't be applied to pre-2006 actions; 2) the Military Commissions Act of 2006 overturned most of those considerations (though the habeas corpus section has since been ruled unconstitutional, which I find more than usually baffling).

[Cecil Turner]

If you want an actual case holding, you can dig it out.

Yeah, we couldn't find it either. I suspect it's because it doesn't exist.

[verner]

'm willing to accept the synopses, the joint statements of the JAG chiefs, John McCain's assertion--that waterboarding is torture, and that includes under U.S. and international law.

And I'll call you 5 former and current directors of the CIA, and the Obama Administration who are all saying that it was NOT torture (see article where Obama's people are backing away from the T word that TM posted.)

And the current NSA head who flat out stated that EI gained invaluable information.

So you can take your nebulous torts, that are subject to debate by intelligent moral people and I'll raise you 2000 living breathing human beings who DID NOT DIE in Bangkok in Oct 2003.

[MayBee]

Waterboarding is not torture when WE apply it to American soldiers during training, to prepare them for being tortured if captured. That really shouldn't be hard position understand.

Laurence O'Donnell keeps making this argument on MSNBC. I just don't see how it's relevant. We use it to train our soldiers because its one form that we don't find too morally repugnant to do. We don't train our military by hanging weights from their testicles or putting them in cages with hungry rats. There's a reason for that.

Also, I can't believe anyone from the extraordinary-renditioning Clinton administration has any right to chime in here. What Bush allowed is infinitely more humane than what Eqypt would do to these guys.

[clarice]

UN honcho weighs in--oh dear oh dear what has The Won unleashed:

"VIENNA (AP) - The U.S. is obligated by a United Nations convention to prosecute Bush administration lawyers who allegedly drafted policies that approved the use of harsh interrogation tactics against terrorism suspects, the U.N.'s top anti-torture envoy said Friday.
Earlier this week, President Barack Obama left the door open to prosecuting Bush administration officials who devised the legal authority for gruesome terror-suspect interrogations. He had previously absolved CIA officers from prosecution.

Manfred Nowak, who serves as a U.N. special rapporteur in Geneva, said Washington is obligated under the U.N. Convention against Torture to prosecute U.S. Justice Department officials who wrote memos that defined torture in the narrowest way in order to justify and legitimize it, and who assured CIA officials that their use of questionable tactics was legal.

"That's exactly what I call complicity or participation" to torture as defined by the convention, Nowak said at a news conference. "At that time, every reasonable person would know that waterboarding, for instance, is torture."

Nowak, an Austrian law professor, said it was up to U.S. courts and prosecutors to prove that the memos were written with the intention to incite torture.

Nowak also said any probe of questionable CIA interrogation tactics must be independent and have thorough investigative powers.

"It can be a congressional investigation commission, a special investigator, but it must be independent and with thorough investigative powers," Nowak said. "

http://www.breitbart.com/article.php?id=D97OTG5G0&show_article=1

[Phosphor]

You have to read the definitions section of statutes and codes to understand the limitations to which the law applies. They expressly apply only to captives.

This is so elementary that it really shouldn't need continued explanation.

From the link I provided earlier, here are the definitions:

§ 2340. Definitions
As used in this chapter—
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

Contrary to your assertion, these definitions do not "expressly apply only to captives." And as I mentioned earlier, there is no form of "we're just practicing" exception to this law.

Regarding your truly Orwellian claim that "It is torture, but not illegal under the law", I can only shake my head in disbelief that anyone smart enough to work a keyboard could be stupid enough to type such a thing.

[Phosphor]

Bold-be-gone.

[verner]

Like I said Clarice, f-ing Eurocrats.

Now we'll see, will Obama honor the One World Gumnet, (AKA the UN) that lets every murderous despot slide with nary a whimper--or will he act like an American?

We already know the answer, don't we.

Heil Soros.

[verner]

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

Note the word PROLONGED. Under that Language, WBding is not torture.

[JM Hanes]

Nick:

"It's not ILLEGAL torture."

So it would be just fine if we train our SERE guys with the same treatment John McCain got in Viet Nam. I certainly hope you haven't been trying to make a moral as well as a legal argument here, because you've now failed on both levels. You really get into serious trouble when you stray from the talking points you've picked up elsewhere. Kinda like working without a teleprompter.

"I've been unable to access the case law from the internet."

Translation: "I didn't really look for case law." Doesn't sound like you've been hitting "the law library" much yourself. If you run across a law which says torture is legal when the victim volunteers, you won't be citing U.S. code. You won't be quoting JAGs either.

Ignatz:

"If the same guy volunteers to let his girlfriend do that to him, he's probaly safe from prosecution (and more than likely he's an honored member of some political body)."

I don't think his girlfriend would not be safe from prosecution if he volunteered to let her take a bite out of his carotid artery with fake vampire teeth, though. That's sort of the problem with the lefties' argument, because all sex play is not, in fact, the same. As far as I can tell they are almost universally unwilling to address the SERE argument at all -- probably because they know they'll find themselves in the same sort of indefensible position that Nick has ended up in.

That's why they've relied so heavily on the "But it doesn't work" argument. They pretty much lost that one this week too, so the goal posts have been shifted to, "Gentler methods might have been effective." Call it selective nuance.

[Ignatz]

-If you want an actual case holding, you can dig it out.-

Your assertion, dinkus, was that waterboarding, per se, is illegal under international law.
If you can't provide a citation then your assertion is no more supportable than your erroneous assumption about which Mr. Posner was making statements you agreed with in the other thread.

[Ignatz]

Thanks Cecil and JMH.
Agreed on both comments.

[JM Hanes]

Ignatz: That would be "I don't think his girlfriend **would be safe** from prosecution..."

[JM Hanes]

I see you already figured that out. :-)

[verner]

Fox Poll, 63% of Americans feel that EI SHOULD be used if it gains necessary information.

So now they've backed themselves into a hole, and must prove that EI was not necessary to get the information.

Good Luck--SUCKERS.

Hope you've got better arguments than Nick E. Troll.

[Nick]

Regarding your truly Orwellian claim that "It is torture, but not illegal under the law", I can only shake my head in disbelief that anyone smart enough to work a keyboard could be stupid enough to type such a thing.

Posted by: Phosphor
----------------------

"Under color of law.'

This code section was specifically written for those who take custody of prisoners and abuse them. SERE trainees are not prisoners taken "under color of law".

Again, read the definitions, and then read up on terms of art which you don't understand.

[MayBee]

Does the CIA take people "under color of law"? I say no.

[clarice]

Obamamateur hour:

http://article.nationalreview.com/?q=NjRmZDc2YzUyOGE1N2Q1YjQ4MTk1NzI2NWU3MmVhZmQ=

[Nick]

-If you want an actual case holding, you can dig it out.-

Your assertion, dinkus, was that waterboarding, per se, is illegal under international law.
If you can't provide a citation then your assertion is no more supportable than your erroneous assumption about which Mr. Posner was making statements you agreed with in the other thread.

Posted by: Ignatz
---------------------

Here's your citation:

In United States of America v. Hideji Nakamura, Yukio Asano, Seitara Hata, and Takeo Kita (U.S. Military Commission, Yokohama, 1-28 May, 1947. NARA Records, NND 735027 RG 153, Entry 143 Box 1025.

[clarice]

Now Nick, describe in detail the waterboarding of lawful prisoners of war there with what we understand was done here to three illegal combatants.

[Nick]

Does the CIA take people "under color of law"? I say no.

Posted by: MayBee
------------------

The OLC authorization under which the CIA acted violates another section of the U.S. Code, 18 U.S. 2441:

(c) Definition.— As used in this section the term “war crime” means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

[Cecil Turner]

SERE trainees are not prisoners taken "under color of law".

Wow, that's clueless even for you. "Color of law" means acting as if in an official capacity. And yes, the Naval (usually Petty) Officer at SERE school is acting under color of law:The act of a state officer, regardless of whether or not the act is within the limits of his or her authority, is considered an act under color of law if the officer purports to be conducting himself or herself in the course of official duties.Here's your citation:

Yeah, Asano is the usual citation. Problems: 1) the victims were entitled to POW status, so any abuse whatsoever was a breach; 2) waterboarding was just a part of the abuse (which included beatings and burning cigarettes into skin); 3) the waterboarding was a more brutal type. Nice parallel . . . if that's the best you've got, it ain't much.

[Jane]

Boy that Andy McCarthy article is really spot on.

And I say: BRING IT ON!

[Nick]

SERE trainees are not prisoners taken "under color of law".
---------------
Wow, that's clueless even for you. "Color of law" means acting as if in an official capacity.
Posted by: Cecil Turner
----------------

Again, SERE trainees are not PRISONERS taken under color of law.

[Elliott]

Trainees VOLUNTEER for the experience. Captives don't.

So, is that why the draft had to be abolished?

[Cecil Turner]

Again, SERE trainees are not PRISONERS taken under color of law.

Again, it has nothing to do with the prisoners--they're obviously not torturing anyone--it has to do with the officer, who certainly is acting under color of law.

[MayBee]

Khalid Sheik Mohammed volunteered for the experience, too.

[Cecil Turner]

Here's that Asano link again, since typepad is particularly poor with the formatting today.

[Ignatz]

-Here's your citation-

Well, we're making a little progress here. It's not actually a citation of any actual international law but it is to a particular case which we've already discussed.
As Cecil points out above and I pointed out earlier, not one of the defendants was charged solely with forcing water into the mouth and nose of our soldiers but also with beating them and applying lit cigarettes to them. And the brutal method by which waterboarding was applied to prisoners by the Japanese was also previously discussed.
It bears no relationship to a process monitored by a doctor which prohibits any ingestion of water into the lungs and last for a few seconds.
To do so dishonors our soldiers who were subjected to real torture.
Why do you hate and dishonor American soldiers, Nick?

[Nick]

Again, SERE trainees are not PRISONERS taken under color of law.

Again, it has nothing to do with the prisoners--they're obviously not torturing anyone--it has to do with the officer, who certainly is acting under color of law.

Posted by: Cecil Turner
--------------

Again, read the definition of the code section:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

Custody or physical control here clearly concerns PRISONERS.

SERE trainees are not prisoners; they can stop the process at any time they want. They are not not in the custody or control of the trainers as envisioned in the Code section.

This Code section largely applies to domestic law enforcement officials.

Section 2441 applies to torture occurring in the context of war crimes.

[Nick]

To do so dishonors our soldiers who were subjected to real torture.
Why do you hate and dishonor American soldiers, Nick?

Posted by: Ignatz |
------------------

You mean like John McCain, a fellow veteran who is clear in stating even a single instance of waterboarding is torture?

Why are you dishonoring John McCain, by arguing otherwise?

[verner]

John McCain who just said that HE ABSOLUTELY OPPOSES trying to prosecute anyone over Enhanced Interrogation.

Now, get lost.

[Cecil Turner]

SERE trainees are not prisoners; they can stop the process at any time they want. They are not not in the custody or control of the trainers as envisioned in the Code section.

A SERE student is in the physical control of a SERE instructor. Whilst waterboarding, he is held down by at least two instructors. The word "PRISONERS" does not appear in the statute. Your position is clearly unsupportable.

[Cecil Turner]

You mean like John McCain, a fellow veteran who is clear in stating even a single instance of waterboarding is torture?

Even at SERE school?

[Nick]

SERE trainees are not prisoners; they can stop the process at any time they want. They are not not in the custody or control of the trainers as envisioned in the Code section.
-----------------------
A SERE student is in the physical control of a SERE instructor. Whilst waterboarding, he is held down by at least two instructors. The word "PRISONERS" does not appear in the statute. Your position is clearly unsupportable.

Posted by: Cecil Turner
--------------------

Physical control--being held by trainers, is not the custody and control, under color of law, as intended under the statute.

It's clear from a full reading of the statute that it is meant to apply to situations where a person exercising authority, against the will of a detainee, held under color of law (claim of legal authority), tortures a detainee.

It's absurd to think that this statute would apply to a volunteer in a training program.

[Nick]

You mean like John McCain, a fellow veteran who is clear in stating even a single instance of waterboarding is torture?

Even at SERE school?

Posted by: Cecil Turner
---------------

Yes, waterboarding at SERE school is torture. However, it's not illegal under the U.S. Code, for what should be obvious reasons. Similarly, it's not objectionable, in contrast to the waterboarding which McCain clearly finds objectionable.

[boris]

"It's absurd to think that this statute would apply to a volunteer in a training program."

Exactly. Which proves it is not torture.

[MayBee]

Similarly, it's not objectionable, in contrast to the waterboarding which McCain clearly finds objectionable.

Is it morally outrageous?
Is the waterboarding at SERE school morally outrageous, Nick?
Are the people who administer it reprehensible?

[clarice]

Perhaps you might understand this more clearly , Nick, if I put into simple language what you are disputing:You think that Bush too narrowly defined torture when he determined that something our trainees go thru and which does not cause lasting physical or mental injury and is not intended to is not torture.
As we've all indicated to you, like Woo and Bybee, we think you're wrong.
We think people charged with the responsibility have to behave like grownups and not silly college sophomores and that means setting strict limits on the use of a legal but distastefyl process, using it rarely and only when the interrogators think the subject has valuable and important life saving information that we can obtain no other way.We think people who insist this program is illegal torture are naive moral preeners.

[clarice]

**YOO* *distasteful**

[Ignatz]

-You mean like John McCain, a fellow veteran who is clear in stating even a single instance of waterboarding is torture?-

This would be the same John McCain who voted to NOT ban waterboarding when presented with the opportunity, correct?
I've always considered McCain a hero who is also a bit of an idiot so I'm being prefectly consistent in dismissing his comments.
I suspect you however are now clinging to the comments of someone you despise to further your tenuous position.

-Why are you dishonoring John McCain, by arguing otherwise?-

See above.

Here's a question for you Nick;
If Obama doesn't force prosecution of this issue shouldn't he be impeached and removed from office? After all you're talking WAR CRIMES!
Since you endorsed the idea that any public official who knew of it previously should be removed from office, including presumably Pelosi and Biden it seems like a no brainer, which oughta be right up your alley.

[hit and run]

Clarice:
Hit, I notice Myrtle Beach is still burning. You did't have a campfire did you, honey?

Yes! But we waterboarded the hell out of it.

[clarice]

Sure..sure..And you promise not to touch the chainsaw while your wife is out of town--please....

[verner]

I have a question. When SOuthern Baptists dunk you, is that waterboarding?

I wouldn't know, Ive just been sprinkled.

[Ignatz]

Nick doesn't listen to legal reasoning so perhaps he can listen to a little portion of verse that deals with persnickety little pecksniffs like him;

-We aren't no thin red 'eroes, nor we aren't no blackguards too,
But single men in barricks, most remarkable like you;
An' if sometimes our conduck isn't all your fancy paints,
Why, single men in barricks don't grow into plaster saints;
While it's Tommy this, an' Tommy that, an' "Tommy, fall be'ind",
But it's "Please to walk in front, sir", when there's trouble in the wind,
There's trouble in the wind, my boys, there's trouble in the wind,
O it's "Please to walk in front, sir", when there's trouble in the wind.

You talk o' better food for us, an' schools, an' fires, an' all:
We'll wait for extry rations if you treat us rational.
Don't mess about the cook-room slops, but prove it to our face
The Widow's Uniform is not the soldier-man's disgrace.
For it's Tommy this, an' Tommy that, an' "Chuck him out, the brute!"
But it's "Saviour of 'is country" when the guns begin to shoot;
An' it's Tommy this, an' Tommy that, an' anything you please;
An' Tommy ain't a bloomin' fool -- you bet that Tommy sees!-