Snappy Answers to Stupid Arguments

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Jonathan Chait spells something out that ought to be obvious, yet somehow seems to have escaped many apparently intelligent people:

The right's newfound outrage [over the idea of prosecuting the people responsible for torture] is a more hysterical manifestation of the mainstream sentiment that it would be an unseemly form of vengeance or "looking backward" to hold the previous administration legally accountable for torture. It's a bizarre sentiment. The prosecution of any crime is inherently backward-looking. We prosecute law-breakers to keep them or others from breaking the law.

He adds another ought-to-be-obvious observation:

The most common defense of waterboarding is that we subjected our own soldiers to it. That's true–as a way of training them to withstand enemy torture. When you reverse engineer a torture-resistance program, you're almost by definition engaging in torture.

Actually, the whole column is worth reading.

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  1. We prosecute law-breakers to keep them or others from breaking the law.

    But not Charlie Lynch!

  2. except when you know you’re being ‘tortured’ by the home team…do you really think you could be the first accidental casualty?

  3. We prosecute law-breakers to keep them or others from breaking the law.

    But not Charlie Lynch!

    I’m pretty sure “We” did prosecute Charlie Lynch.

  4. If torture of this nature was clearly illegal, then those who engaged in it, were briefed about it, ordered it, covered it up –should all be prosecuted. If it wasn’t illegal, then Congress should pass legislation making it illegal, even if that let’s those who practiced it off the hook for past deeds.

  5. When then next administration prosecutes Geithner for tax evasion and Emmanuel for RICO violations related to TARP and the auto bailouts, I somehow doubt Chait will find these arguments very persuasive. Chait makes a good point. The problem is that he would never make it in any circumstance involving a Democrat. If Chait and his ilk meant anything beyond, send everyone who disagrees with me to jail, when they invoked the rule of law, they would be a lot more persuasive.

  6. I welcome a prosecution of the Bush Administration for administering torture. I like the precedent of going after the previous administration for breaking the law. I hope the next one after Obama does the same.

  7. I guess that opens the door for going after former president Clinton for perjury.

  8. I’d still like to know what is meant by severe mental suffering.

    The people who committed suicide to avoid prison would like to know as well. Wait, no, they killed themselves to avoid libertarian sanctioned torture…

    silly me

  9. This precedent will be useful when they go after Obama for usury.

  10. Why does Jesse Walker hate America?

  11. I’d still like to know what is meant by severe mental suffering.

    The people who committed suicide to avoid prison would like to know as well. Wait, no, they killed themselves to avoid libertarian sanctioned torture…

    What does this even mean? Are you high?

  12. Just call it “professional courtesy” and be done with it.

    Does anybody really believe the laws apply to everyone, anymore?

  13. Is waterboarding torture? Im not so sure, i know there has be anecdotal evidence of mental issues, but i can see no direct damage done so its difficult. I think we can have a debate on the issue, and we have in the past, i think there have been bills trying to classify it as torture and a war crime, neither made it into law. So i would say that there is not direct criminality involved and as such i don;t see how they could prosecute. Mental torture is a gray area when the person is still very functional after the ordeal. I dont see short term mental anguish as torture. Perhaps im just mean.

  14. Obama isn’t helping Chait out any, though, in that every time he is specifically asked whether the Bush Administration sanctioned criminal torture, he waffles and refuses to answer.

  15. uh oh, josh b, the libertarian religionistas will punish you for daring to think.

  16. Nobody is going to be prosecuted for torture. Raving about torture and war crimes isn’t about bringing malefactors to justice, it’s a ritual of tribal identification and a means of vilifying political opponents. Nobody actually cares enough about these supposed crimes to spend the least amount of political capital prosecuting them.

    We have the pattern of the Vietnam era to prove this. Here’s then Lt. John Kerry (U.S. Navel Reserve) testifying in under oath before congress in 1971:

    I would like to talk, representing all those veterans, and say that several months ago in Detroit, we had an investigation at which over 150 honorably discharged and many very highly decorated veterans testified to war crimes committed in Southeast Asia, not isolated incidents but crimes committed on a day-to-day basis with the full awareness of officers at all levels of command?.

    They told the stories at times they had personally raped, cut off ears, cut off heads, taped wires from portable telephones to human genitals and turned up the power, cut off limbs, blown up bodies, randomly shot at civilians, razed villages in fashion reminiscent of Genghis Khan, shot cattle and dogs for fun, poisoned food stocks, and generally ravaged the countryside of South Vietnam in addition to the normal ravage of war, and the normal and very particular ravaging which is done by the applied bombing power of this country.

    Kerry was far from alone in making such allegations. Many people including political office holders made them but when the left acquired near total control of the federal government following Watergate they made no effort at all to bring the thousands of supposed war criminals in the U.S. military to justice. According to Kerry et al, all the senior members of the U.S. military today cut their teeth committing war crimes in Vietnam.

    If people seriously believe that crimes were committed they have a duty as citizens and human beings to sacrifice every other political considerations in order to bring the perpetrators to justice. Nothing is more dangerous to a society than having war criminals in the upper echelons of military and intelligence services.

    But nobody is going to do anything beside puff up their chest in hypocritical moral outrage. These people do not want trials which would bring with them a detailed examination of all the tradeoffs that the defendants had to make in deciding how far to go.

    We will see the same pattern as 40 years ago. A lot of noise, a lot of self-congratulations of moral superiority and then nothing whatsoever.

  17. “The most common defense of waterboarding is that we subjected our own soldiers to it. That’s true–as a way of training them to withstand enemy torture. When you reverse engineer a torture-resistance program, you’re almost by definition engaging in torture.”

    Just so I follow the argument, it’s ethically and legally acceptable to torture in order to aid persons in withstanding possible (highly unlikely) future torture… In what other situations is torture ethically (or legally) acceptable? That’s the crux of the issue, and that quotation does nothing to clarify any part of the issue.

    Chait’s argument is not as smart or snappy as he or Mr. Walker believe.

  18. Back in college we waterboarded each other for fun. We used it to celebrate both great success and massive failure. We didn’t call it waterboarding, but from what I gather, it’s about the same, though our lasted only about 30 seconds.

    I really don’t believe the hysterics over this issue. I believe torture for information (as opposed to pleasure) is morally defensible. The argument comes to an impasse because many do not believe anything that could possibly be construed as torture is ever defensible.

    To those people I say, get the rope, 50+ gallons of water, and we shall celebrate.

  19. not isolated incidents but crimes committed on a day-to-day basis with the full awareness of officers at all levels of command?

    Ya think that Kerry might have been exagerrating just a little bit? Like maybe he was lying his ass off to advance the greater good of a political cause?

    Since it was sooo common, surely he and all those others spewing charges curiously lacking, names, dates, specifics or witnesses, brought people up on charges for violating the law that they witnessed as was their responsibility as members of the military, right?

    Yeah war crimes were committed in ‘Nam. And Iraq. And Afghanistan, WWI, WWII, Korea, the3 Spanish American war, the War of 1812 …

    Routinely and condoned by all levels of the chain of command? I don’t fucking think so. That bullshit perjury is one reason I went third party in 2004.

  20. Oh yeah, back on topic,
    What happened was torture. Nobody responsible will be prosecuted for it. The political class protects their own.

  21. We prosecute law-breakers to keep them or others from breaking the law.

    That is completely wrong. Prosecution is not a deterrent and never has been. The understanding that all prosecution is backward looking is a little trite. That isn’t the best argument not to prosecute, even if it is used by the right. The best reason is the prosecution is overtly political in nature. The potential for abuse is just as present now as it was when people wanted to prosecute Clinton out of office. There is one difference. That being Congress pursued an action against Clinton, no matter how stupid, when he was in office. No such attempts were made while Bush was in office and even more troubling is many of those calling for prosecution today were for what they want prosecute for while Bush was in office.

    This is the definition of a slippery slope with respect to potential abuse for political gain. Don’t forget the current administration is still campaigning, it almost appears as though they have changed the paradigm for running an administration and will continue to campaign as long as possible. And when campaigning in the US you always have, and need, someone to campaign against, or vilify.

  22. TAO, Josh B,

    Waterboarding is pointless. So let’s count it as an interrogation technique. Regardless, go forward now with its amazing successes on ending global islamo-terrorism. Of course, you are pulling for the immediate end of US presence in Afghanistan and Iraq.

    Just kidding. I too understand that waterboarding is a program that requires a dedicated long-lived application. C’mon peeps. It is not torture. It is battling a conspiracy more intelligent and capable than global bankers, neo-con military strategists, and elected bail-out architects.

    As if…dream on in your dream world. Siberian Paper Tigers may be rare but Paper Tygers of the night are burning bright in their frightful symmetry.

  23. For the current Congress to prosecute they would they would have to put half of their own up for prosecution. They are just as complicit and culpable since it is their duty act as a check against the executive branch. Their willingness to go along is just as bad as what was done. They just found their backbone recently since they have a larger gang standing behind them.

  24. Shannon Love-

    You may be right. I tend to doubt that the democrats will actually sacrifice all other political considerations in an effort to punish Bush administration war criminals.

    Libertarians should not associate themselves with defenders of torture. It is not “smart” or “reasonable” or “intellectually even handed” to play the Cathy Young game of hiding one’s support of torture behind a facade of “being open.”

    The constitution does not authorize the follwoing:

    1. Standing armies.

    2. Trillion dollardefense budgets.

    3. Making war on foreign land.

    4. Naiton building.

    5. Concocting and prosecuting “wars on terror.”

    6. Assualt and battery by public sector actors.

    It is utterly unreasonable to argue that the constitution, itself, permits such activity. Of course, you intellectually inferior legal positivists may argue otherwise, but you know your position is quite weak. why?

    1. Text. Obviously, there is no language in the constitution that specifically authorizes any of the aforesaid acitivites.

    2. Enumerated powers. Are we a nation with a constitution that limits the projection of state power or not? If we are true to our founding, then there is no question that we are a nation that limits the projection of state power to the specific grants of such found in the constitution. No implied powers. If the framers had ordained that future generations could “imply” the further projection of state power, they could have done so within the four corners of the document. They did not.

    3. Separation of Powers. The framers knew full well the tendency of officers of the crown to indulge their fellow rumpswabs. Obsequiousness to the crown was not favored. In fact, it was loathed. That is why they fashioned the document to provide for a separation of powers. They wanted the judiciary to be impenetrable bulwarks for individual liberty and not to give two shits about “federalism” or whether anybody would seek public office if they were to be prosecuted for conduct for which a private person would be.

    They were smarter than today’s legal positivists. They knew that any asshole could yell and scream “Mohammed is coming, Mohammed is coming” so give me more power. It is the oldest trick in the tyrant’s book. That is why the absolutist position is so far superior to anything else. You don’t concern yourself with the national security wolves hollering “danger.” It is always, yes always, better to dismiss the arguments of those seeking greater state power.

  25. All this “torture” talk reminds me of ’80s feminists talking about “rape.” We all used to know what rape was, but suddenly it was being redefined as “she had a few drinks and got seduced but regretted it the next day.”

    From the memos it’s clear they were trying to see how far interrogation could go without it being torture. They were doing things like slapping people once or waterboarding them in very carefully defined ways, similar to what they do in SERE training. So I think it clouds the issue to run around screaming about torture as if they were ripping people’s fingernails out. It’s the equivalent of calling it “child pornography” when a teen girl sends a topless cellphone photo of herself.

    brett l is right, the Chiat comment doesn’t clarify much. However, if waterboarding=torture and Bush officials are to be prosecuted for doing it to a handful of Al Qaeda types, then shouldn’t we also prosecute Clinton officials who did it to thousands of American pilots and special forces soldiers?

  26. Just so I follow the argument, it’s ethically and legally acceptable to torture in order to aid persons in withstanding possible (highly unlikely) future torture… In what other situations is torture ethically (or legally) acceptable? That’s the crux of the issue, and that quotation does nothing to clarify any part of the issue.

    I think you’ve misunderstood what Chait is saying. He’s replying to people who claim that waterboarding is not torture because the military does it to its own soldiers. Chait makes the obvious point that the reason the military does this is to train them to resist torture.

  27. Emmanuel for RICO violations related to TARP and the auto bailouts

    Why would you prosecute Emmanuel for things that happened during the Bush administration?

  28. I just wrote:

    He’s replying to people who claim that waterboarding is not torture because the military does it to its own soldiers.

    If anyone doubts that people make this asinine argument, read PapayaSF’s comment at 12:17.

  29. domoarrigato,

    What does “severe pain or suffering, whether physical or mental, is intentionally inflicted” mean? Despite the furor that many on this site express over the use of torture abroad, many don’t care or even support domestic actions of the state that meet the criteria for torture as denoted by the GC.

    What the fuck is with that? People should either admit they believe torture to be a legitimate function of the state, posit their own definition of torture, or at least pretend to care about domestic torture.

  30. However, if waterboarding=torture and Bush officials are to be prosecuted for doing it to a handful of Al Qaeda types, then shouldn’t we also prosecute Clinton officials who did it to thousands of American pilots and special forces soldiers?

    Much like rape, it’s all about consent. The difference, say, between assault and bondage play is that same line. Or imagine a routine gynecological exam being performed without consent… it becomes gruesome sexual torture.

  31. Nobody actually cares enough about these supposed crimes to spend the least amount of political capital prosecuting them.

    Certainly nobody cared enough about it at the time to put a stop to it. And the Dems now crying for investigations had it in their power to do just that.

    Nothing is more dangerous to a society than having war criminals in the upper echelons of military and intelligence services.

    Or in the executive branch or Congress. Anyone seriously arguing that there should be prosecutions has to be willing to go after the accessories who enabled the torture, and that includes the members of Congress who knew of it and supported it.

    For the record, I regard waterboarding as being a very marginal case for torture, at best/worst. When you look at the range of activities engaged in as coercive interrogation, there is a whole universe of things that are far worse than waterboarding. I tend to be very wary of diluting what should be a very strong term by applying it indiscriminately to borderline cases.

  32. The endless debate over this is starting to qualify as torture. No one will be prosecuted–as said above, the political class protects its own–so let’s move on.

    (For the record, I am opposed to torture morally; and because the state is not competent enough to judge whether it is cruel and unusual; and because it is ineffective.)

  33. when the left acquired near total control of the federal government following Watergate

    The Congress elected in 1974 was more liberal than most, but it wasn’t exactly a bunch of New Left radicals prone to arguing that Washington was filled with war criminals. And it was tamed by 1976 — i.e., when the Republicans lost the White House.

  34. Chait makes the obvious point that the reason the military does this is to train them to resist torture.

    This isn’t the lay-down argument Chait thinks it is. The military does not train its people to resist the worst forms of torture by inflicting it on them. It does not pull their fingernails, subject them to electrocution, beat the sole of their feet with truncheons, etc., ad nauseum. Indeed, a plausible place to draw the line on whether a given technique is torture or not is “would you inflict this during training?” If the answer is no, it is too extreme/damaging, then it is torture. If the answer is yes, then it just may not be.

  35. I see it a lot more like rape, but in a different way. It clouds the issue to equate moral torture with criminal torture. We need different words for the degrees thereof. In the case of homicide, we have “manslaughter”, “first degree”, “second degree”, “voluntary” and “involuntary”.

    We don’t have words for this in terms of torture or rape.

  36. Considering we court-martialed American soldiers for torture during the Spanish-American War and Vietnam War for waterboarding (and called it torture), I don’t see why it doesn’t count all of the sudden.

    Waterboarding does have physical effects.

    During waterboarding, some of this water can flow through the nostrils and into the lungs, Keller explains. Water in the lungs, especially if it’s dirty, can cause potentially deadly pneumonia or pleuritis, an inflammation of the lung lining.

    Waterboarding could also cause hypoxia, a condition in which the body is not getting enough oxygen, either because the victim is holding his or her breath or inhaling water — and inadequate oxygen supplies can lead to deadly organ failure, Keller adds.

    But even healthy people can die from sheer terror, as Martin A. Samuels, chairman of the neurology department at Brigham and Women’s Hospital in Boston told ScientificAmerican.com earlier this year. The sudden outpouring of stress hormones can cause the heart to beat abnormally, hampering its ability to deliver blood to the body.

    So besides pneumonia, hypoxia or a heart attack, it doesn’t do anything physical.

  37. PapayaSF,

    The difference between sex and rape is exactly the difference between SERE and what we did in Gitmo.

    Consent.

  38. Oh goodness. The waterboarding done by the CIA is not the same as the “water cure activities” prosecuted as war crimes.

  39. PapayaSF-

    Facts not in evidence. Who is running around and screaming torture as if its like ripping fingernails out? Who? Where? When? Accordingly, your analogy is epic fail.

    The fact remains that soldier boys thought they could be bad asses by assaulting people. Cowards. Of course, I want the higher echelon peeps to do the perp walk-but I also think it is essential to make life miserable for the “lowly” grunt who administered the torture.

    Penalty: DEATH.

  40. Dear morons who insist “waterboarding isn’t torture”

    In 1983, Reagans DOJ prosecuted a Texas sheriff for waterboarding prisoners to get confessions.

    After WWII we prosecuted and convicted several Japanese for waterboarding american POWs

    From the WAPO :

    After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: “I was given several types of torture. . . . I was given what they call the water cure.” He was asked what he felt when the Japanese soldiers poured the water. “Well, I felt more or less like I was drowning,” he replied, “just gasping between life and death.”

    Nielsen’s experience was not unique. Nor was the prosecution of his captors. After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan’s military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding


    The United States (like Britain, Australia and other Allies) pursued lower-ranking Japanese war criminals in trials before their own tribunals

    As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the “water cure” to question Filipino guerrillas.

    In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners’ civil rights by forcing confessions. The complaint alleged that the officers conspired to “subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning.”

    The four defendants were convicted, and the sheriff was sentenced to 10 years in prison.

    So please — shut the fuck up trying to pretend that it isn’t torture.

    We have prosecuted foreigners and Americans for waterboarding.

    IT IS TORTRURE.

  41. Indeed, a plausible place to draw the line on whether a given technique is torture or not is “would you inflict this during training?

    I think it’s pretty plausible to say that if soldiers undergo a technique in order to help them withstand torture, you can’t use the fact that they underwent it as evidence that the technique is not torture.

  42. TAO,

    Are you sure about that? Is the difference the fact that the CIA put a rag over the guys’ faces?

  43. Can we get a guest post from PapayaSF on male/female relations?

  44. The chicken shits are all of those peeps afraid to throw the book at any public sector actor involved. As libertarians, we should step up and insist upon the prosecution of each and every public secotr actor involved in such brutal assualts.

    It is far more than just waterboarding. We need to send a message that there is a new paradigm in town-one that is not friendly to the political class or public employee class.

  45. I believe torture for information (as opposed to pleasure) is morally defensible. The argument comes to an impasse because many do not believe anything that could possibly be construed as torture is ever defensible.

    Well, there are also lots of folks who are against allowing torture as a policy even though they recognize occasions where it could be a defensible action. That to me is what strikes at the heart of the conundrum. A policy allowing torture is extremely suspect morally, even though there are occasions where someone who tortured someone else deserved to be forgiven because they felt that the particular circumstances left it as the only viable option to prevent a serious imminent threat.

    Chait’s analogy to the starving man stealing bread and legalizing theft is quite apt. Theft and torture can in some instances be very forgivable actions. Legalizing either makes terrrible policy.

  46. I understand that the presence of the cloth clouds the issue. However, I just ask that people take notice that the Japanese war crime of the “water cure” is not the same thing.

  47. Right, but we court-martialed an American soldier for torture for waterboarding in Vietname. The soldier was the guy pictured. Why is torture on the battlefield less valid than torture in an American prison?

  48. I don’t get the debate. We shouldn’t be doing these things, even if they aren’t as bad as some other types of torture–or strenuous interrogation, if you prefer. Aside from the bad precedent, the damage to our good-guy image (one we still have to a significant degree, despite all the nonsense you hear), its questionable effectiveness, the morality of the practice, the inconsistency of torture with our Constitution, the slippery slope it creates, the fodder it presents for anti-American propagandists, it also adds to the sense that our government officials already have that rules that apply to citizens and to other countries don’t apply to them.

  49. We also court-martialed the Abu Ghraib soldiers. From a brief review of the case of the Soldier in Viet Nam yields the result that the technique was specifically outlawed by the Command Structure.

    This is why we need to distinguish different legal realms with respect to torture. And, hard as it may be, we need to not go the ChiTom route and just “shout louder” to prove our point.

  50. ProL – just so! All of these techniques are counter to the spirit of America. They absolutely should not be allowed.

    However, we cannot conflate what is counter to the spirit of America with what is counter to law.

  51. What if you choke your chicken until it spurts its guts?

  52. I run steps to help with mountain climbing. Running steps does not equal mountain climbing.

  53. TAO,

    I’m talking more policy than legality at this point. What’s illegal these days, anyway, at least when the government is the actor?

  54. When your buddies in special forces waterboard you, there is a critical element missing: the abject terror of being under total control of a blood enemy.

    You just fucking cannot equate practice waterboarding with the real deal.

  55. This is why we need to distinguish different legal realms with respect to torture. And, hard as it may be, we need to not go the ChiTom route and just “shout louder” to prove our point.

    How exactly is showing the morons who want to create a “gray area” where there isn’t one, “shouting louder” ? My point is proven by the fact that we have prosucuted foreigners and americans for engaging in the same practices that people like TAO, and PapayaSF are pretending are some kind of moral gray area.

    In fact more people should be shouting louder.

    Why do we need to distinguish legal realms to prosecute something that is and has been illegal for quite some time?

    Quite your apologist bullshit.

  56. When your buddies in special forces waterboard you, there is a critical element missing: the abject terror of being under total control of a blood enemy.

    That — and also the consent thing.

    And the fact that when your buddies do it, you know it is gonna end at some point, and your buddies care if you die or not.

  57. Why do we need to distinguish legal realms to prosecute something that is and has been illegal for quite some time?

    mmm, that’s some good crazy. And bonus question-begging.

    the same practices that people like TAO, and PapayaSF are pretending are some kind of moral gray area.

    Please go don’t quit your day job. I never said anything about a moral gray area. Reading: you fail it.

  58. I’m talking more policy than legality at this point. What’s illegal these days, anyway, at least when the government is the actor?

    I’m with you on policy to an extent, but it does raise (note: not beg!) the question as to what combination of techniques rise to the level of moral torture (because we want moral torture banned) that would tarnish America’s image. Sleep deprivation? Harmless-but-fear-inducing critters?

    Hell, I don’t know.

  59. Episiarch,

    I wonder what their safe word is?

  60. The waterboarding done by the CIA is not the same as the “water cure activities” prosecuted as war crimes.

    I understand that the presence of the cloth clouds the issue. However, I just ask that people take notice that the Japanese war crime of the “water cure” is not the same thing.

    From the above linked WaPo article:

    Case 1 – with cloth: (that was prosecuted)

    In this case from the tribunal’s records, the victim was a prisoner in the Japanese-occupied Dutch East Indies:

    A towel was fixed under the chin and down over the face. Then many buckets of water were poured into the towel so that the water gradually reached the mouth and rising further eventually also the nostrils, which resulted in his becoming unconscious and collapsing like a person drowned. This procedure was sometimes repeated 5-6 times in succession.

    Case 2 — without cloth: (Also prosecuted)

    Here’s the testimony of two Americans imprisoned by the Japanese:

    They would lash me to a stretcher then prop me up against a table with my head down. They would then pour about two gallons of water from a pitcher into my nose and mouth until I lost consciousness.

    And from the second prisoner: They laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air. . . . They then began pouring water over my face and at times it was almost impossible for me to breathe without sucking in water.

    Someone explain to me how the presence of “cloth” makes a bit of difference,

  61. I run steps to help with mountain climbing. Running steps does not equal mountain climbing.

    You’re missing the point. See my comment at 12:34.

  62. I think there are two separate issues here; should we do it and was, all things considered, it a crime when it was done. I am an agnostic on the question of should we do it. I have yet to see the real evidence that it did any good. But at the same time, the world hates us anyway and nearly always does worse things that waterboarding. Moral authority and a four bucks will get you a latte at Starbucks.

    As far as the second question, was it a crime at the time that should now be prosecuted, it seems pretty rediculous to prosecute this as a crime when the entire Justice Department, Exectutive Branch and Congressional leadership agreed at the time that it was the right thing to do. This is not the case where a few rogue agents did crazy shit. This is not Ollie North runing a rogue operation out of the Whitehouse or G. Gordon Liddy and his plumpers. This was a policy known at all levels of government and briefed to and approved by the highest members of both parties. Shithead like Chait need to face up to admit their own party’s shared responsibility for this, or shut the fuck up.

  63. G. Gordon Liddy and his plumpers

    A deft combo of RC’z Law and Great Name For A Band.

    (Sorry, John. I typo like a mofo myself.)

  64. Pro Libertate | May 6, 2009, 1:11pm | #
    Episiarch,

    I wonder what their safe word is?

    “MORE!!!”

  65. I do like that as a band name SF.

  66. Maybe a GG Allin cover band?

  67. 1) The U.S. law banning torture has no consent exemption. If this really is a question of rule of law, and waterboarding really is torture, then shouldn’t we prosecute everyone who authorized waterboarding as a part of SERE? Especially given how fuzzy the line of “consent” is within the military hierarchy? Don’t we at least have to discontinue waterboarding as part of SERE until a consent exemption is created?

    2) That waterboarding was a war crime when performed on POWs and a crime when performed on criminal suspects does not, actually, prove it was torture. Legitimate POWs are not merely exempt from torture, but also many less-than-torture interrogation techniques. The same is true for normal criminal defendants. Waterboarding can be utterly illegal when applied to POWs and criminal suspects without constituting torture.

    3) It is not legally sufficient to show a course of action is cruel, inhuman, or degrading to establish it legally as prohibited torture. While the U.S. implementation of the UN Convention against Torture bans torture, it does not ban the “other cruel, inhuman, or degrading treatment” also mentioned in that convention. Waterboarding can be cruel and inhuman without being torture.

    I’m not talking here about the morality of waterboarding, but the legal question. However horrible, evil, and wrong non-consensual waterboarding might be, I’m not sure there’s even a prima facie case that waterboarders engaged in what U.S. law defines as torture.

    If you’re going to prosecute someone, it is not sufficient to demonstrate that the activity is immoral. One must demonstrate that it is illegal, which is an entirely different standard. Shouting very loudly that the waterboarding was immoral does not move the argument a millimeter toward proving that the waterboarding is prosecutable.

  68. As far as the second question, was it a crime at the time that should now be prosecuted, it seems pretty rediculous to prosecute this as a crime when the entire Justice Department, Exectutive Branch and Congressional leadership agreed at the time that it was the right thing to do.

    Funny how you don’t actually answer the second question — was it a crime.

    I don’t get this “let’s defer to the Executive branch (and the DOJ is absolutely part of the executive branch). Just because the executive branch wanted to do it and wrote some memos doesn’t make it right, nor does it make it legal.

    Can we stop pretending like a memo from the DOJ can somehow change laws? And can we also stop pretending that just because the President or members of the Executive can somehow make illegal things legal?

    So if tomorrow the Executive branch decides that raping John’s mom is the right thing to do, John should have no problem with it.

    Furthermore, the executive branch weren’t all on board. Google Philip Zelikow — a lawyer for Sec. of State Rice — he authored a memo that contradicted the rationale to torture, and the administration suppressed and tried to get rid of all copies of the memo.

    This is not the case where a few rogue agents did crazy shit. This is not Ollie North runing a rogue operation out of the Whitehouse or G. Gordon Liddy and his plumpers. This was a policy known at all levels of government and briefed to and approved by the highest members of both parties.

    No this is worse. This is a case where the whole political hierarchy decided to engage in illegal activities and then try and cover their ass with a few memos.

    And now we have people pretending like “Well since the orders came from the top and they were bipartisan everything is ok”.

    No — it isn’t legal just cuz the president says so, nor is it legal if Nancie Pelosi approved it.

    If you people really believed that all these people are innocent, then you would love your day in court, get acquitted, and vindicate your position and silence the critics. But something tells me that the last thing you torture apologists would want would be a to have do defend

  69. But something tells me that the last thing you torture apologists would want would be a to have do defend

    Should be

    But something tells me that the last thing you torture apologists would want would be a to have do defend these actions

  70. ChicagoTom, winning people over with his lack of namecalling and eminently reasonable tone, ladies and gentlemen.

    Dude, you’re such a sanctimonious fuckwad.

  71. Is waterboarding torture? Im not so sure, i know there has be anecdotal evidence of mental issues, but i can see no direct damage done so its difficult. I think we can have a debate on the issue, and we have in the past, i think there have been bills trying to classify it as torture and a war crime, neither made it into law. So i would say that there is not direct criminality involved and as such i don;t see how they could prosecute. Mental torture is a gray area when the person is still very functional after the ordeal. I dont see short term mental anguish as torture. Perhaps im just mean.

    Inflicting pain isn’t torture, as long as there is no permanent physical damage? Really?

  72. if soldiers undergo a technique in order to help them withstand torture

    But they don’t. They undergo a technique in order to help them withstand it. What wider abstraction might describe the technique is irrelevant.

    (Yours might be the first example of actual by-the-book question begging ever to appear on the internet. Congratulations.)

  73. John,
    Neither the executive branch nor the legislative branch have the constitutional authority to interpret laws. That is reserved for the judiciary. Also, if the DoJ’s interpretation is all that’s needed to interpret the law, why does the Solicitor General exist? The DoJ could write a memo, email it to the SCOTUS and that would be the end of it.

  74. Chicago Tom

    If you want to throw the entire government in jail, meaning everyone who knew and approved of torture, you go right ahead and do that. But of course, that is not what is going to happen and you know it. What is going to happen is all responsible Democrats will be let off the hook and all responsible Republicans will be prosecuted to the full extent of the law.

    Given that reality, how is it anything but a show trial and how are people like you anything but just thugs and opportunists looking for an excuse to put the opposition in jail?

  75. Chicago Tom,

    Clearly you don’t give a fuck about crime or justice or you would want Pelosi and company in jail to.

  76. Oh, come off it Angry Optimist. You’ve proven again and again that you have no grasp of either the moral or factual issues at the heart of the current debate.

  77. Dude, you’re such a sanctimonious fuckwad.

    Fuck you TAO. I am not trying to win anyone over. I am trying to call out the shit for brains like you (the cloth MAKES A DIFFERENCE!!!!1111!!!! — “Its not exactly the same!!!111!!!”)

    I’m not trying to win the hearts and minds of people who justify and make apologies for torture. I am trying to heap scorn and ridicule upon them. Because that is what they deserve.

    Yeah I am sanctimonious. And proud of it. I support human rights and I oppose the abuse of people and the use of torture — regardless of whose side is doing it. There is no gray area. if a jury wants to nullify the actions of an actor, thats one thing, but to just accept as policy that my country will engage in torture and not hold anyone to account — unacceptable.

    If only more people were sanctimonious like me.

  78. ok, John, now you’re being a partisan hack again.

    But they don’t. They undergo a technique in order to help them withstand it. What wider abstraction might describe the technique is irrelevant.

    Oh, snap.

  79. Oh, come off it Angry Optimist. You’ve proven again and again that you have no grasp of either the moral or factual issues at the heart of the current debate.

    Wow, what an overwhelming “argument” there.

    ChicagoTom – you keep inflating the legal and the moral, and that’s probably the most irritating thing about your sanctimoniousness, in that, to you, every moral and legal argument is so crystal clear that anybody who dare actually engage in actual discussion is an apologist.

    So, since it’s all so perfectly clear to you, ChiTom, answer this: Is it torture to introduce harmless-but-scary insects into a person’s cell for the purpose of interrogation?

    What temperature (I want it in exact degrees) does the prisoner’s cell have to be to constitute inhumane treatment?

    I expect answers forthwith, since you’re so far ahead of all us.

  80. Clearly you don’t give a fuck about crime or justice or you would want Pelosi and company in jail to.

    What are you talking about you moron?!

    I wouldn’t lose a second of sleep over seeing any Congressperson who knew of and approved of what we did see prison time.

    Unlike you John, I don’t defend what “my team” does at any and all costs.

    But let’s also not pretend that culpability is the same for the people that

    1. Carried out the action

    2. Ordered the action / set the policy

    3. Was briefed on the policy but didn’t stop it.

    Last I checked, Congress doesn’t get to validate/invalidate the Executive branch’s policy without passing a law.

  81. Chicago Tom,

    Go blow smoke up someone else’s ass. No one on the Democratic side is going to be prosecuted and you know. You say all of your sanctamonous bullshit because you know there is no danger of it ever happening. It just allows you to advocate for the jailing of people you don’t like without having to fess up to being a thug.

  82. TAO-

    I think you are upping the volume yourself regarding Chicago Tom. He generally posts detailed and thoughtful comments.

    Yes, I know that I up the volume as well-probably much more so than Chicago Tom. Of course, as a general proposition, the ole catching more flies with honey than vinegar is the better route. Boy, I have learned that the hard way once or twice.

  83. Back up. Is anyone arguing that waterboarding is not painful? Now is anyone arguing that inflicting pain doesn’t count as torture? I don’t see how this is so complicated. It seems incredibly straightforward to me.

  84. ChicagoTom,

    I think that if Congressional leaders were briefed on this and did nothing to publicize or stop it, yes, they are culpable. I don’t see how you can think otherwise, given the position you’re taking. Their level of culpability might be lower, but that’s about it.

    I’d be all for kicking a couple of hundred people out of the administration and ten or so out of Congress for their involvement in this and other arguably unconstitutional actions. Naturally, if there’s a prosecution here, it’ll avoid anyone who has the protection of the administration (not to pick on the Dems; the GOP would do the same).

  85. The most common defense of waterboarding is that we subjected our own soldiers to it. That’s true–as a way of training them to withstand enemy torture. When you reverse engineer a torture-resistance program, you’re almost by definition engaging in torture.

    Or are you by definition engaging in almost torture? That is the point of the issue, after all. I doubt that the US military would, e.g., cut off soldiers’ legs in order to train them against similar torture. There is a line that the US military will not cross in training soldiers against torture; it’s not unreasonable to suspect that the line would mark the boundary between torture and “really bad stuff close to torture.”

    Obviously, of course, there is an extra psychological component involved between soldiers who know it’s a training exercise and someone who doesn’t and thinks that he might really drown. At the same time, any such psychological components wouldn’t even be moot if we were talking about hacking off limbs or putting eyes out.

    One has to draw a line between torture and not torture, between the permissible and the non-permissible. Absolute moral indignation at waterboarding from people who don’t have absolute moral indignation at Supermax prisons doesn’t do much for me, and smacks of hypocrisy. They’re willing for the government to engage in inhumane behavior; they just draw the line a little differently.

    Though making this argument sounds like an anarchist saying that a minarchist has no standing to complain about other government abuses so strenuously, since she concedes the power of government to tax or provide for common defense.

  86. LM – given that his first post here said “Dear Morons” who may dare to disagree with ChiTom, I’m not particularly inclined to be charitable.

  87. I think that if Congressional leaders were briefed on this and did nothing to publicize or stop it, yes, they are culpable. I don’t see how you can think otherwise, given the position you’re taking. Their level of culpability might be lower, but that’s about it.

    ProLib

    Uhmm..that’s what I said — That the culpability isn’t the same. I never said Congress wasn’t culpable — just that the level of culpability isn’t the same with those who planned and those who executed it.

  88. Dear TAO who like to mock others reading abilities:
    This comment directed to you :
    Oh, come off it Angry Optimist. You’ve proven again and again that you have no grasp of either the moral or factual issues at the heart of the current debate.

    Wasn’t my comment.

    It was posted by aspushkin.

    Moron

  89. um, I know, and I responded to him as such. Did I direct that portion at you? I can respond to more than one commenter in a post, you know.

  90. “Uhmm..that’s what I said — That the culpability isn’t the same. I never said Congress wasn’t culpable — just that the level of culpability isn’t the same with those who planned and those who executed it.”

    Since that is most assuredly not going to happen, how is it then fair or in any way just to hold only one side culpable?

  91. Oh, okay.

    I’m not sure how this would fall out, legally speaking. We shoot and blow up people all of the time, even innocent people, so there’s some point where we allow bad behavior and some point where we don’t. I don’t think anyone can reasonably argue that the U.S. was engaging in full-blown torture, but I do think what we were doing was wrong. Was it wrong enough to be self-evidently wrong in the Nuremberg sense and to override any legal opinions to the contrary? Maybe.

    In my mind, not coming close to torture would avoid this issue. I, personally, would’ve resigned rather than write an opinion justifying torture or torture-lite.

  92. In the context of your post, CT, it certainly came off as “no culpability.”

    So, do you think Congressionals, as accessories to the war crime, should be jailed, or merely scolded?

  93. Scolded with extreme prejudice!

    Sorry, I just thought that was funny.

  94. I’m going to keep saying this until someone notices.

    Waterboarding causes pain. Causing pain on someone you have tied up is torture.

  95. I agree that waterboarding crosses the line, but I ask those who demand prosecution, “Where exactly is that line?” Screaming for prosecution is a cheap way to get a reputation as a moral person. Actually standing up and saying what one thinks the new rule should be is much riskier.

  96. max hats, thanks for puting out a proposition for debate. That took courage.

  97. Pain can’t be the sole measure, even in my anti-torture book. We lock people up, use force to make them stay locked up, put them in solitary confinement, shackle them, etc., etc. None of these things is pleasant or without some form of pain.

    The issue is about what is appropriate in an interrogation. Is yelling okay? What about slapping? Insults? Threats? I’m not sure any of even this sort of thing is necessary, but I suppose we have to accept something more than polite requests for information in war or quasi-war situations. Where should the line be drawn? What about the lack of due process that firmly establishes that the one being interrogated is guilty of anything?

  98. Back in college we waterboarded each other for fun.

    I know of at least one father who shampoos his child that way.

    Andy Breckman was waterboarded by genuine Rumanians to raise money for WFMU. He wound up saying “fuck” outside safe harbor hours. In response Ken Freedman suspended himself from performing on air because he hadn’t anticipated needing control of audio delay while he went out onto the roof to accompany the torturers.

    It really wasn’t anybody’s fault. Who doesn’t say “fuck” while being waterboarded by someone who isn’t your parent trying to use a towel to keep shampoo rinsings off your face? And how could Ken have realized nobody’s finger would be on the button during the few seconds he needed to get out there? We felt so sorry for them. Please, president Obama, don’t prosecute Ken or Andy!

  99. Now, regarding max hats’s proposed definition of torture, “Causing pain on someone you have tied up is torture.” I very much agree with this definition. I would just add one detail. Let’s change “tied up” to “restrained”. After all, switching from rope to say, hand cuffs or rubber cuffs doesn’t make the process suddenly not torture.

  100. It’s weird. Every time I’m on the internet, Americans are so big and tough. They call Kmer Rouge interrogation techniques pranks and do them for fun! But every time I go and spend time with Americans in person, they’re just a bunch of fat people who whine at the slightest personal inconvenience or discomfort. I just don’t know what to believe!

  101. What about the lack of due process that firmly establishes that the one being interrogated is guilty of anything?

    Pro Libertate, refusing to answer a question when the answer does not incriminate oneself is a crime. It is called contempt of court. The punishment for contempt of court is at least a few days in jail. For gray areas, prosecutors grant immunity to the person they are asking and then that person is legally obligated to answer. I’m OK with this, provided that the answers can’t be used to keep the witness locked up for “more questioning”.

    Given that the prisoners in Gitmo were locked up and that they could reasonably conclude that any answers they give could increase their time in Gitmo, I think the violations of their right to remain silent are clearer than the violations of their right to be free of torture. So, you were right on to bring up the process violations.

  102. Max hat, I wouldn’t generalize about all Americans from your personal experiences.

  103. Yes, we Americans. So weak, so worthless.

  104. Since that is most assuredly not going to happen, how is it then fair or in any way just to hold only one side culpable?

    So by this logic, if 3 people rob a bank, and one gets away, the other two shouldn’t be prosecuted — cuz that wouldn’t be fair? That is the argument you are going with ?

    What’s fair is that everyone involved is held accountable. But I’ll take any accountability I can get at this point.

    In the context of your post, CT, it certainly came off as “no culpability.”

    More like in the context of your mind.

    The post cleary stated that i wouldn’t lose sleep over seeing congress folk who approved jailed over it, but we shouldn’t pretend the culpability is the same for all three actors.. but anyway…to answer your question :

    So, do you think Congressionals, as accessories to the war crime, should be jailed, or merely scolded?

    If they knew what was going on, and approved it, then jail would be the appropriate punishment.

    But I also have to wonder — even if members of Congress objected (as some did — although I dont think it was the leadership) could they have stopped the Executive branch from doing it? What authority does Congress have over the Executive other than Impeachment?

  105. They undergo a technique in order to help them withstand it. What wider abstraction might describe the technique is irrelevant.

    Er, the issue here isn’t whether the use of waterboarding in SERE proves that it’s torture. It’s whether its use in SERE disproves that it’s torture, as claimed by PapayaSF and other apologists.

    To prove it’s torture, we must merely look at the plain language of the law.

  106. Since that is most assuredly not going to happen, how is it then fair or in any way just to hold only one side culpable?

    What’s funny is that John thinks this is nothing more than a partisan/political issue. And therein lies the problem. John’s belief is also held by the media, and elected officials and many americans. And it’s dead wrong.

    There are two sides, sure, but they aren’t Democrats v Republicans or Liberal v Conservative. The sides are Approve of/Complicit in Torture v Disapproves of / Not Complicit in torture.

    I’m not worried about Dem oxes being gored…because Dems who approved of torture aren’t on “my side”.

  107. It’s weird. Every time I’m on the internet, Americans are so big and tough. They call Kmer Rouge interrogation techniques pranks and do them for fun! But every time I go and spend time with Americans in person, they’re just a bunch of fat people who whine at the slightest personal inconvenience or discomfort. I just don’t know what to believe!

    Not to mention the officials who authorized torture were a bunch of draft-dodging sissies. I guarantee you most of the torture apologists in this country would blow a gasket if you so much as got their special order wrong at McDs. They apologize for torture because they live in a state of perpetual fear. It’s always “what if a terrorist had your baby hostage?!” Please.

    Whatever happened to principles (and the law) mattering when it’s hard, not just when it’s easy? It’s the people who are most afraid of their own shadows who are most in favor of these things. And I think an afraid population is a most dangerous thing. They’ll acquiesce to almost anything if they think it will make them safer.

  108. Then we should prosecute FDR. Who cares if he is dead?

    If the point is to hold people responsible, I say let’s start with him.

  109. It’s amusing to compare this topic with others discussed around here. When a school uses a “zero-tolerance” policy to punish someone with a Tylenol or a butter knife as if they’d brought heroin or an AK-47 to school, commenters (rightly) rip the school authorities for being inflexible idiots. But when the topic is “torture,” we see hysteria like schoolgirls who’ve seen a spider on the wall. So for Jesse Walker and the other nuance-impaired ideologues, I’ll try again.

    You can’t logically say “waterboarding is torture” and then in the next breath say “except if someone consents to it.” Yes, that’s a valid distinction, but the second statement admits that not all waterboarding is torture, which is the plain meaning of the first statement. The memos show that they tried to use physical methods that would not be considered torture, and thus they did not waterboard people to anywhere near the degree the Japanese did in WWII.

    It’s like saying “sleep deprivation is torture.” OK, so if I wake you once at 3:00 a.m., am I torturing you? Obviously not. If I wake you every 15 minutes for a week? Sure. So clearly there’s a grey area or line somewhere in between where “torture” applies.

    Chait’s argument about all prosecutions being backward-looking is similarly flawed. The point is that the “let’s prosecute” types are advocating an ex post facto reinterpretation of the law. Let’s say a mayor decides that for security reasons he needs to run a special motorcade past a school at exactly 25.001 mph. He consults the city lawyers, who tell him it’s OK because the .001 is within the margin of error of speedometers and radar guns. A committee on the city council also approves. But a new mayor is elected, and their legal team says no, anything at all over the limit of 25 mph is a crime, so we’re going to prosecute the mayor and his legal team (but not the driver or the council members) for speeding and conspiracy and endangering children. That’s the sort of thing going on here.

  110. I think you’ve misunderstood what Chait is saying. He’s replying to people who claim that waterboarding is not torture because the military does it to its own soldiers. Chait makes the obvious point that the reason the military does this is to train them to resist torture.

    The winning argument will be the one in which the word “torture” can’t be traded out for “interrogation”.

  111. “The most common defense of waterboarding is that we subjected our own soldiers to it. That’s true–as a way of training them to withstand enemy torture. When you reverse engineer a torture-resistance program, you’re almost by definition engaging in torture.”

    This is one of the most obvious cases of begging the question I’ve seen in a long time. (Has someone made this observation already?)

    I understand the point you are trying to make, but you still get an F for effort. There are much better arguments out there.

    When people use bad arguments to try to make good points, they’re either lazy, ignorant, or are fishing for followers who would latch on to any shiny object.

  112. WAAHAHHHHHHHHH1111 I’M A DOUCHEBAG ON THE INTERNET CRYING LIKE A FUCKING BABY ABOUT THE BAAAAAAD MAAANNS DOING THE BAAAAAD THIIIINGGS AND ACTING AS IF MY “OPINION” MEANS ANYTHING WHEN I KNOW I’M REALLY JUST ENGAGING IN THE BIGGEST, LAMEST CIRCLE JERK IN THE ENTIRE HISTORY OF MANKIND!!! WAAHHHHHHH!!! I’M A CHILDISH TWAT ON THE INTERNET ACTING LIKE I’M HOT SHIT BEHIND THE ANONYMITY OF A KEYBOARD AND A SCREEN NAME AND I’LL NEVER ADMIT WHAT A USELESS BAG OF FLAB I AM!!! WAHHHHHAHHAHHHAHHHAAAAAAHHHHHH!!!!!

  113. Bag of flab? I’ll have you know my BMI is 20.5.

  114. Waterboarding is FUN!

    Please don’t waterboard me.

  115. WAAAAHHHHHHHH!!!!,

    Welcome back, joe.

  116. This is one of the most obvious cases of begging the question I’ve seen in a long time. (Has someone made this observation already?)

    It’s only begging the question if the SERE guys didn’t consider the torments they were preparing soldiers for torture.

    At any rate the argument is stupid. Controlled waterboarding for a few seconds in a friendly environment is not comparable to long-term infliction when you’re being held by an antagonist you have no way of knowing will ever set you free.

  117. The lawyers who made the policies did not actually commit any of the practices that got so much media attention. Does anyone advocating prosecution have a suggestion about what specific crime they should be charged with?

  118. The lawyers who made the policies did not actually commit any of the practices that got so much media attention. Does anyone advocating prosecution have a suggestion about what specific crime they should be charged with?

    Criminal conspiracy to break U.S. laws regarding torture.

  119. Soldiers who get waterboarded as training, get it ONCE. Prisoners who get waterboarded, get it daily for months.

    I had a bamboo sliver under my thumbnail once. Hurt like the devil. But just because I survived it doesn’t mean bamboo slivers under the thumbnail doesn’t count as torture. Ditto for electric shocks.

  120. You can’t logically say “waterboarding is torture” and then in the next breath say “except if someone consents to it.” Yes, that’s a valid distinction, but the second statement admits that not all waterboarding is torture, which is the plain meaning of the first statement.

    I don’t know how to even begin to reply to a comment that includes sentences like that. Apparently, the man who called me “nuance-impaired” has trouble with the meaning of “except.”

    No one is calling for the prosecution of people who conduct consensual waterboardings, OK? Or consensual whippings, or consensual fingernail-pullings, or consensual sessions on the rack. If someone does any of that non-consensually, though, it’s not comparable to a .001 difference in vehicular speed.

  121. Yeah, Papaya, consent is an absolute defense to crimes.

  122. Jesse, somehow you must have missed all the flat statements that “waterboarding is torture” that have been zipping around for years.

    Also, you are avoiding the issue of how much involuntary waterboarding is a crime. One second, once? 10 seconds? One minute 20 times a day? That’s the issue the lawyers were dealing with. They did decide on limits:

    where authorized, it may be used for two “sessions” per day of up to two hours. During a session, water may be applied up to six times for ten seconds or longer (but never more than 40 seconds). In a 24-hour period, a detainee may be subjected to up to twelve minutes of water application. See id. at 42. Additionally, the waterboard may be used on as many as five days during a 30-day approval period.

    So they set limits they were advised were within legal limits, and now different legal opinions want to rule it illegal, ex post facto.

  123. “No one is calling for the prosecution of people who conduct consensual waterboardings, OK?”

    And therein lies your problem. Were our hypothetical SERE students briefed enough to give informed consent? Is it torture if they wish to rescind their consent but cannot? How many times can one be waterboarded before it becomes illegal? Is consent the only moral qualification?

    The proposition that a person who consents to physical abuse which they do not enjoy absolves the abuser of all moral responsibility is problematic. To do so for a cause, SERE or Ranger school, is understandable. The ends mitigate the means — not justify. On the other hand, if a person refuses to consent to imprisonment we are morally required to find some other form of acceptable punitive action? Your arguments need some work. Consent is an important part of the picture, but cannot be the only metric.

  124. I think these last few comments do a better job at fleshing out some of the problems over the absolutist position on ‘torture’.

    Is sending someone to a place where they are likely to be anally raped ‘torture’?

    Is is ‘torture’ to send someone to a 10×6 room for years for getting high on a substance less lethal than alcohol?

    Is it ‘torture’ to blow off someone’s leg with a bomb?

    Is it ‘torture’ to round up Japanese Americans and subject them to awful treatment and conditions in a prison camp?

    Is it ‘torture’ to be slapped? (If so, I know some dumb broads I would like to see on trial for war crimes)

  125. JB: Well, I don’t think any of those count. I’d define torture as something like: intentional, prolonged infliction of major levels of pain. From the Spanish Inquisition stuff and what the North Vietnamese did to John McCain, that’s what everyone agrees on. Call it 10 on a scale of 10. And at the other end, there’s the kid behind you on the flight kicking the seat, or the seat itself, which we jokingly refer to as torture (and which we probably would consider torture if prolonged enough). That’s a 1. But slapping someone, or slamming them against the wall? Might be an assault, but if it’s not prolonged I don’t see it as torture.

    The waterboarding schedule above comes to a maximum of 12 minutes a day, on a maximum of five days a month. That’s certainly higher than 1, but it’s far from a 10. Maybe a 3: it totals only an hour per month, leaves no permanent physical damage, and there are many worse kinds of pain. I’m reluctant to throw around the word “torture” for anything less than a 5 or 6.

    And given that is was only done to (IIRC) three Al Qaeda bigwigs in the wake of 9/11, I’m willing to give the people who did it the benefit of the doubt. It’s not the sort of thing I want to see as regular practice, but I think the hysteria about it around here and elsewhere is misplaced.

  126. Importantly, the torture statute (18 USC 2340) includes “custody” as an element of the definition of torture. From what I’ve read, the legal definition of “custody” partially deals with whether a detainee would feel free to terminate the encounter. That’s probably where the consent element comes in. I freely admit that I haven’t gone through SERE training, but I hear the soldiers who undergo waterboarding have a safe word that will stop the proceedings immediately. That sounds like enough to take the SERE stuff outside the bounds of “custody,” which is an element of the torture definition.

    Waterboarding done during SERE training, on folks who are not “in custody” can never be torture. That does not mean that the identical activity done on suspected terrorists is not torture.

  127. // I don’t think any of those count. I’d define torture as something like: intentional, prolonged infliction of major levels of pain. From the Spanish Inquisition stuff and what the North Vietnamese did to John McCain, that’s what everyone agrees on.//

    The irony in this statement is that waterboarding was used in the Spanish Inquisition and by the North Vietnamese.

    //And given that is was only done to (IIRC) three Al Qaeda bigwigs in the wake of 9/11, I’m willing to give the people who did it the benefit of the doubt. It’s not the sort of thing I want to see as regular practice, but I think the hysteria about it around here and elsewhere is misplaced.//

    Winston Churchill never tortured Nazi agents even during the worst days of the Blitz. Maybe he was just a ninny and bleeding heart.

    http://www.slate.com/id/2217583/

    But the reason for the hysteria is the people who are for it wish this practice to be done with no transparency or accountability asked of the government. All liberty is chipped away for expedients.

  128. There are different ways to waterboard. We used a nicer way, with a wet cloth, not the funnel-in-the-nose sort you are referring to.

    Churchill was dealing with people who were (nominally) following the Geneva Convention. He wanted the Germans to treat British prisoners humanely. This obviously doesn’t apply to Al Qaeda, which never follows the Geneva Convention.

    As for “transparency,” most sensible people don’t think details of interrogations of high-ranking enemy combatants need to be made public while there is fighting going on. And no, I’m not worried of a slippery slope: “First they waterboarded Al Qaeda leaders and I said nothing….” This was clearly done in a limited way.

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